CERTIFICATE OF INCORPORATION
OF
CONAGRA, INC.
The undersigned, a natural person of the age of 21 years or more, acting
as an incorporator of a corporation under the General Corporation Law of the
State of Delaware, adopts the following Articles of Incorporation for such
corporation:
ARTICLE I
NAME
The name of the Corporation shall be ConAgra, Inc.
ARTICLE II
INITIAL REGISTERED OFFICE AND
INITIAL REGISTERED AGENT
The street address of the initial registered office of the Corporation
is 100 West 10th Street, Wilmington, County of New Castle, Delaware 19801.
The name of its initial registered agent at such address is The Corporation
Trust Company.
ARTICLE III
PURPOSES
The general nature of the business and the objects and purposes proposed
to be transacted, promoted and carried on by the Corporation are to do any and
all of the things herein mentioned as fully and to the same extent as natural
persons might or could do and in any part of the world, including:
(a) To manufacture, purchase, acquire, prepare, produce, own,
hold, store, process, prepare for market, preserve, package, deal in, trade
in, sell, distribute, mortgage, pledge and dispose of flour, feed grain,
agricultural products, articles manufactured from agricultural products, and
any articles, materials, ingredients, goods, wares, merchandise, products,
machinery, equipment and property related or incidental thereto or useful,
necessary or convenient in connection therewith.
(b) To operate factories, warehouses, elevators, and other
buildings for manufacturing, buying, selling, handling, and storing flour,
feed grain, agricultural products and articles manufactured from agricultural
products, to conduct a public warehouse business, and to engage in, carry on,
or otherwise conduct, or employ others to conduct, general research or
investigation for the development of new or improved products or by-products
and the use of such products or by-products as food, and for improving the
ease or efficiency of the products, operations and procedures of the
Corporation or for other purposes.
(c) To promote, institute, enter into, conduct, perform, assist
or participate in every kind of commercial, agricultural, mercantile,
manufacturing, mining or industrial enterprise, business, work, contract,
undertaking, venture and operation in any part of the world and, for any such
purpose, to purchase, lease and otherwise acquire, take over, hold, sell,
liquidate and otherwise dispose of the real estate, crops, livestock, plants,
equipment, inventory, merchandise, materials, stock, good will, rights,
franchises, concessions, patents, trademarks and trade names and other
properties of the corporations, associations, partnerships, firms, trustees,
syndicates, ventures, combinations, organizations and other entities located
in or organized under the laws of any part of the world; to continue, alter,
exchange and develop their business, assume their liabilities, guarantee or
become surety for the performance of their obligations, reorganize their
capital and participate in any way in their affairs, and to take over, as a
going concern and to continue in its own name, any business so acquired, all
in accordance with and to the extent permitted by law.
(d) To borrow or raise moneys for any of the purposes of the
Corporation and, from time to time, without limit as to amount, to draw, make,
accept, endorse, execute, issue, and grant promissory notes, drafts, bills of
exchange, warrants, options, bonds, debentures, and other negotiable or non-
negotiable instruments, evidences of indebtedness and agreements; to secure
the payment thereof and of the interest thereon and the performance thereof by
mortgage upon, or pledge, conveyance, or assignment in trust of, the whole or
any part of the assets of the Corporation, whether at the time owned or
thereafter acquired; and to sell, pledge, or otherwise dispose of such
securities or other obligations of the Corporation for its corporate purposes.
(e) To guarantee, purchase, hold, sell, assign, transfer,
mortgage, pledge or otherwise dispose of the shares of the capital stock of,
or any bonds, securities or evidences of indebtedness created by any other
corporation or corporations of the State of Delaware or any other state,
country, nation or government and, while the owner of said stock, to exercise
all the rights, powers, and privileges of ownership, including the right to
vote thereon.
(f) To pay for any property, securities, rights or interests
acquired by this Corporation in cash or other property, rights or interests
held by this Corporation, or by issuing and delivering in exchange therefor
its own property, stock, shares, bonds, debentures, notes, warrants for stock,
certificates of indebtedness or other obligations or securities howsoever
evidenced.
(g) To carry on all or any part of its business objects or
purposes as principal, factor, agent, contractor or otherwise, either alone or
as a member of, or associated with any corporation, association, partnership,
firm, trustee, syndicate, individual, combination, organization, joint venture
or entity in any part of the world.
(h) In carrying on its business and for the purpose of furthering
its objects and purposes, to enter into and perform agreements and contracts
of any nature with any government, state, territory, district, municipality,
political or governmental division or subdivision, body politic, corporation,
association, partnership, firm, trustee, syndicate, individual, combination,
organization or entity whatsoever.
(i) To have one or more offices, to carry on all or any of its
operations and business and, without restriction or limit as to amount, to
purchase or otherwise acquire, hold, own, mortgage, sell, convey or otherwise
dispose of real and personal property of every class and description in any of
the States, Districts, Territories or Colonies of the United States, and in
any and all foreign countries, subject to the laws of any such State,
District, Territory, Colony or Country.
It is the intention that the objects and purposes specified in the
foregoing clauses of this Article shall not be in any wise limited or
restricted by reference to or inference from the terms of any other clause of
this or any other Articles in these Articles of Incorporation, but that the
objects and purposes specified in each of the clauses of this Article shall be
regarded as independent objects and purposes. It is also the intention that
said clauses be constructed both as purposes and powers; and generally, that
the corporation shall be authorized to exercise and enjoy all other powers,
rights, and privileges granted to or conferred upon a corporation of this
character by the laws of the State of Delaware, and the enumeration of certain
powers as herein specified is not intended as exclusive of or as waiver of any
of the powers, rights or privileges granted or conferred by the laws of said
State, now or hereinafter in force.
ARTICLE IV
AUTHORIZED SHARES
The capital stock of said corporation shall be Thirty-two Million,
Five Hundred Thousand Dollars ($32,500,000) divided into five million
(5,000,000) shares of common stock of a par value of Five Dollars ($5) per
share, and one hundred and fifty thousand (150,000) shares of Class B
preferred stock of a par value of Fifty Dollars ($50) per share.
The Class B preferred shares of this corporation may be divided
into and issued in series, and each series shall be so designated as to
distinguish the shares thereof from the shares of all other series and
classes. All shares of this Class shall be identical except as to the
following relative rights and preferences as to which there may be variations
between different series within Class B as determined by the Board of
Directors: (a) The rate of dividend; (b) Whether the shares may be redeemed
and, if so, the redemption price and the terms and conditions of redemption;
(c) The amount payable upon shares in event of voluntary or involuntary
liquidation; (d) Sinking fund provisions, if any, for the redemption or
purchase of shares; (e) The terms and conditions, if any, on which shares may
be converted.
No transfer of stock of this Corporation shall be operative until
entered upon the books of the Corporation.
ARTICLE V
INDEMNIFICATION
The Corporation shall, to the extent required, and may, to the
extent permitted, by Section 145 of the Delaware General Corporation Law, as
amended from time to time, indemnify and reimburse all persons whom it may
indemnify and reimburse pursuant thereto. Notwithstanding the foregoing, the
indemnification provided for in this Article V shall not be deemed exclusive
of any other rights to which those entitled to receive indemnification or
reimbursement hereunder may be entitled under any By-Law of this corporation,
agreement, vote or consent of stockholders or disinterested directors or
otherwise.
ARTICLE VI
DURATION
The Corporation shall have perpetual existence.
ARTICLE VII
POWERS
The following provisions are inserted for the management of the
business and for the conduct of the affairs of the corporation, and it is
expressly provided that they are intended to be in furtherance and not in
limitation or exclusion of the powers conferred by the statutes of the State
of Delaware.
(a) The affairs of this Corporation shall be conducted by a
Board of Directors. The number of Directors of the Corporation,
not less than three, shall be fixed from time to time by the By-
Laws. The Directors are to be elected by the Stockholders, such
election to take place at such time and to be conducted in such
manner as shall be prescribed by the By-Laws of this Corporation.
(b) The books of the Corporation may be kept within or without
the State of Delaware at such place or places as may be designated
from time to time by the Board of Directors.
(c) The Board of Directors may make, alter or repeal the By-Laws
of the Corporation except as otherwise provided therein.
(d) The Board of Directors may authorize and cause to be executed
mortgages and liens upon the real and personal property of the
Corporation, may hold meetings outside the State of Delaware, may
declare and pay stock dividends, and may set apart out of any
funds of the Corporation available for dividends a reserve or
reserves for any proper purpose or to abolish any such reserves in
the manner in which it was created.
(e) In addition to the powers and authorities hereinbefore or by
statute expressly conferred upon it, the Board of Directors is
hereby empowered to exercise all such powers and to do all such
acts and things as may be exercised or done by the Corporation;
subject, nevertheless, to the provisions of the statues of
Delaware, of this certificate of incorporation and of any By-Laws
from time to time made by the stockholders; provided, however,
that no By-Laws so made shall invalidate any prior act of the
Board of Directors which would have been valid if such By-Laws had
not been made.
ARTICLE VIII
MEETINGS OF STOCKHOLDERS
The time for holding meetings of Stockholders for the election of
a Board of Directors and for holding any special meetings of the Stockholders
shall be as provided for by the By-Laws adopted by the Board of Directors.
ARTICLE IX
AMENDMENT
The Corporation reserves the right to amend, alter, change or
repeal any provision contained in these Articles of Incorporation in the
manner now or hereafter prescribed by statute, and all rights conferred upon
Stockholders herein are granted subject to this reservation.
ARTICLE X
INTERESTED DIRECTORS
No contract or transaction between a corporation and one or more
of its directors or officers, or between a corporation and any other
corporation, partnership, association, or other organization in which one or
more of its directors or officers are directors or officers, or have a
financial interest, shall be void or voidable solely for this reason, or
solely because the director or officer is present at or participates in the
meeting of the board or committee thereof which authorizes the contract or
transaction, or solely because his or their votes are counted for such
purpose, if:
(a) The material facts as to his relationship or interest and as
to the contract or transaction are disclosed or are known to the Board of
Directors or the committee, and the board or committee in good faith
authorizes the contract or transaction by the affirmative vote of a majority
of the disinterested directors, even though the disinterested directors be
less than a quorum; or (b) The contract or transaction is fair as to the
corporation as of the time it is authorized, approved or ratified, by the
Board of Directors, a committee thereof, or the Shareholders. Common or
interested directors may be counted in determining the presence of a quorum at
a meeting of the Board of Directors or of a committee which authorizes the
contract or transaction.
ARTICLE XI
PRIVATE PROPERTY
The private property of the Stockholders shall not be subject to
the payment of corporation debts to any extent whatsoever.
ARTICLE XII
INCORPORATOR
The name and address of the incorporator is:
Claude I. Carter 1705 North 102nd Avenue
Omaha, Nebraska 68114
ARTICLE XIII
INITIAL BOARD OF DIRECTORS
The name and mailing address of the persons who are to serve as
directors until the first annual meeting of stockholders, or until their
successors are elected and qualify, are as follows:
Ralph T. Birdsey %Clayton Brokerage
400 Colony Square
Suite 1130
1201 Peachtree Street
Atlanta, Georgia 30361
L.D. McGehee 1302 Hodges Avenue
Ruston, Louisiana 71270
Claude I. Carter 1705 North 102nd Street
Omaha, Nebraska 68114
Robert B. Daugherty 400 North Elmwood Road
Omaha, Nebraska 68132
James B. Cooper Route 3
Marshalltown, Iowa 50158
Lewis H. Durland P.O. Box 550
Terrace Hill
Ithaca, New York 14850
Roy H. Park %Park Broadcasting, Inc.
Box 550
Terrace Hill
Ithaca, New York 14850
Charles M. Harper 6105 Lamplighter Drive
Omaha, Nebraska 68152
Dated this 2nd day of December, 1975.
/s/ CLAUDE I. CARTER
----------------------------------
Claude I. Carter, Incorporator
CERTIFICATE OF RESOLUTION
ESTABLISHING SERIES OF
CLASS B PREFERRED SHARES
OF CONAGRA, INC.
_____________________________
Pursuant to Section 151 of the General Corporation Law of the
State of Delaware, ConAgra, Inc., a corporation organized and existing under
the laws of the State of Delaware, does hereby certify:
FIRST: The Certificate of Incorporation of ConAgra, Inc. provides
that the Board of Directors of the corporation may establish series of Class B
preferred shares, and may determine certain relative rights and preferences
between different series within said Class B.
SECOND: Pursuant to said authority expressly vested in it by the
provisions of the Certificate of Incorporation, the Board of Directors of
ConAgra, Inc., by a resolution duly adopted as of the 15th day of December,
1975, established seven series of Class B preferred shares of the corporation.
A "Statement of Resolution Establishing Series of Class B Preferred Shares of
ConAgra, Inc.", attached hereto as Exhibit "A" and made a part hereof as fully
as if set out herein, sets forth the resolutions as adopted by the Board of
Directors in establishing the series of preferred shares and the number of
shares of stock of each series.
IN WITNESS WHEREOF, ConAgra, Inc., a Delaware corporation, has
caused this Certificate to be signed by its President and its Secretary this
19th day of December, 1975.
ConAgra, Inc., a Delaware corporation
/s/ CLAUDE I. CARTER
BY______________________________
Claude I. Carter, President
/s/ J.W. GOODRICH
Attest: BY______________________________
J. W. Goodrich, Secretary
EXHIBIT "A"
STATEMENT OF RESOLUTION ESTABLISHING SERIES
OF CLASS B PREFERRED SHARES OF
CONAGRA, INC.
SERIES 1
"RESOLVED, that the Board of Directors of ConAgra, Inc., a
Delaware corporation, hereby authorizes the issuance of 37,862 shares of
$50.00 par value, 5% cumulative, non-participating, convertible, voting
Preferred Stock of this Company, such stock to be known as Series 1, Class B
Preferred Stock and shall be subject to the following relative rights and
preferences:
1. Priority of such shares upon dissolution of the issuer shall
be legally equivalent to all preferred shares of the Company
issued and outstanding at the date of issuance of such
Series 1, Class B Preferred Stock.
2. All or any part of such preferred stock may be called for
redemption by the Company, at its option, at any time after
March 1, 1974, by paying therefor in cash the par value
thereof plus accrued dividends to the date of payment, such
sum being the redemption price. At least thirty (30) days
notice prior to the redemption date, by prepaid certified
mail, shall be given to the holders of record of such
preferred stock, addressed to the last post office address
shown on the records of the Company. On the date fixed for
redemption, and stated in such notice, each holder of
preferred shares shall surrender such holder's certificate
or certificates at the place designated in such notice and
thereupon be entitled to receive payment of the redemption
price. If notice of redemption is duly given and if funds
for the redemption have been set aside prior to the
redemption date, notwithstanding the fact that a stockholder
may have failed to surrender the same, no dividend shall be
payable on such shares after the date fixed for redemption,
and all rights with respect to shares so called for
redemption shall forthwith, after such date, terminate,
except only the right of the holders to receive the
redemption price thereof, without interest.
3. This preferred stock may be converted at any time after
March 1, 1974, from time to time, in whole or in part, at
the option of the holders, or any of them, into common stock
of the Company at the rate of three and one-third (3-1/3)
shares of common stock for one (1) share of preferred stock
plus accrued dividends on converted preferred to and
including the date of issuance of such common stock;
provided, however the Company, instead of converting any
such preferred stock so tendered into common, may redeem
said preferred stock at any time within ninety (90) days
after tender by paying the par value thereof plus dividends
accrued to the date of payment to the offering stockholder.
4. The Stockholders shall not be obligated to sell and the
Company shall not be obligated to convert or redeem any of
said preferred stock prior to March 1, 1974.
5. Each preferred stock certificate shall have stamped thereon
a legend describing this redemption agreement or making
reference to this provision."
SERIES 2
"RESOLVED, that the Board of Directors of ConAgra, Inc., a Delaware
corporation, hereby authorizes the issuance of 19,928 shares of $50.00 par
value, 5% cumulative, non-participating, convertible, voting Preferred Stock
of this Company, such stock to be known as Series 2, Class B Preferred Stock
and shall be subject to the following relative rights and preferences:
1. Priority of such shares in respect of dissolution of the
issuer and payment of dividends shall be legally equivalent
to all preferred shares of the Company issued and
outstanding at the date of the issuance of such Series 2,
Class B Preferred shares.
2. All or any portion of this preferred stock may be called for
redemption by the Company, at its option, at any time after
July 30, 1976, by paying therefor in cash the par value
thereof plus accrued dividends to date of payment, such sum
being the redemption price. If less than all of this
preferred stock is called for redemption (other than as a
result of an attempted conversion thereof by the holder
thereof) then the stockholders whose stock is to be so
redeemed shall be selected by lot. Provided, however, that
no portion of the stock of any stockholder shall be called
for redemption (without his consent) unless all of this
preferred stock owned by such stockholder shall be
simultaneously called for redemption, and such redemption
would constitute a complete redemption of all of the stock
of the Company owned by such stockholder within the meaning
of Internal Revenue Code Section 302(b)(3) (or the
corresponding section of the Internal Revenue Code then
applicable) if such stockholder were deemed to own no common
stock of the Company. At least thirty (30) days notice
prior to the redemption date, by prepaid certified mail,
shall be given to the holders of record of such preferred
stock, addressed to the last post office address shown on
the records of the Company. On the date fixed for
redemption, and stated in such notice, each holder of
preferred shares shall surrender such holder's certificate
or certificates at the place designated in such notice and
thereupon be entitled to receive payment of the redemption
price. If notice of redemption is duly given and if funds
for the redemption have been set aside prior to the
redemption date, notwithstanding the fact that a stockholder
may have failed to surrender the same, no dividend shall be
payable on such shares after the date fixed for redemption,
and all rights with respect to shares so called for
redemption shall forthwith, after such date, terminate,
except only the right of the holders to receive the
redemption price thereof, without interest.
3. This preferred stock may be converted at any time after
July 30, 1976, from time to time, in whole or in part, at
the option of the Stockholders, or any of them, into common
stock of the Company at the rate of two and one-half (2-1/2)
shares of common stock for one (1) share of preferred stock
plus one (1) share of common stock for each $20.00 of
accrued dividends on converted preferred to and including
the date of issuance of such common stock; provided,
however, the Company, instead of converting any such
preferred stock so tendered into common, may redeem said
preferred stock at any time within ninety (90) days after
tender by paying the par value thereof plus dividends
accrued to the date of payment to the offering stockholder.
In case the Company shall be recapitalized through the
subdivision or combination of its outstanding common stock
into a greater or smaller number of shares, then in each
such case the conversion ratio then in effect shall be
reduced or increased in the same proportion.
4. Without the consent of the holders of a two-thirds majority
of this series of preferred stock at the time outstanding,
given in person or by proxy, either in writing or at a
meeting of shareholders at which the holders of this series
of preferred stock shall vote separately as a class, the
Company shall not issue (and has not heretofore issued) any
shares of any other series of preferred stock having
priority over this series of preferred stock as to payment
of dividends (including dividends in arrears or in default)
or as to distribution of assets upon liquidation,
distribution or winding up of the Company.
5. The Stockholders shall not be obligated to sell and the
Company shall not be obligated to convert or redeem any of
said preferred stock prior to July 30, 1976.
6. Each preferred stock certificate shall have stamped thereon
a legend describing this redemption agreement or making
reference to this provision of this contract."
SERIES 3
"RESOLVED, that the Board of Directors of ConAgra, Inc., a Delaware
corporation, hereby authorizes the issuance of 12,065 shares of $50.00 par
value, 7% cumulative, non-participating, convertible, voting Preferred Stock
of this Company, which stock shall be legally equivalent in respect of
priorities upon dissolution and payment of dividends to the preferred stock of
the company issued and outstanding, such stock to be known as Series 3,
Class B Preferred Stock and to be subject to the following relative rights and
preferences.
1. All or any portion of this preferred stock may be called for
redemption by the Company, at its option, at any time after
July 30, 1978, by paying therefor in cash the par value
thereof plus accrued dividends to the date of payment, such
sum being the redemption price. If less than all of this
preferred stock is called for redemption (other than as a
result of an attempted conversion thereof by the holder
thereof), then the stockholders whose stock is to be so
redeemed shall be selected by lot. Provided, however, that
no portion of the stock of any stockholder shall be called
for redemption, (without his consent) unless all of this
preferred stock owned by such stockholder shall be
simultaneously called for redemption and such redemption
would constitute a complete redemption of all of the stock
of the Company owned by such stockholder within the meaning
of Internal Revenue Code Section 302(b)(3) (or the
corresponding section of the Internal Revenue Code then
applicable) if such stockholder were deemed to own no common
stock of the Company. At least thirty (30) days notice
prior to the redemption date, by prepaid certified mail,
shall be given to the holders of record of such preferred
stock, addressed to the last post office address shown on
the records of the Company. On the date fixed for
redemption, and stated in such notice, each holder of
preferred shares shall surrender such holder's certificate
or certificates at the place designated in such notice and
thereupon be entitled to receive payment of the redemption
price. If notice of redemption is duly given and if funds
for the redemption have been set aside prior to the
redemption date, notwithstanding the fact that a stockholder
may have failed to surrender the same, no dividend shall be
payable on such shares after the date fixed for redemption,
and all rights with respect to shares so called for
redemption shall forthwith, after such date, terminate,
except only the right of the holders to receive the
redemption price thereof, without interest.
2. This preferred stock may be converted at any time after
July 30, 1978, from time to time, in whole or in part, at
the option of the Stockholders, or any of them, into common
stock of the Company at the rate of three and one-third (3-
1/3) shares of common stock for one (1) share of preferred
stock plus one (1) share of common stock for each $15.00 of
accrued dividends on converted preferred stock; provided,
however, the Company, instead of converting any such
preferred stock so tendered into common, may redeem said
preferred stock at any time within ninety (90) days after
tender by paying the par value thereof plus dividends
accrued to the date of payment to the offering stockholder.
In case the Company shall be recapitalized through the
subdivision or combination of its outstanding common stock
into a greater or smaller number of shares, then in each
such case the conversion ratio then in effect shall be
reduced or increased in the same proportion.
3. Without the consent of the holders of a two-thirds majority
of this series of preferred stock at the time outstanding,
given in person or by proxy, either in writing or at a
meeting of shareholders at which the holders of this series
of preferred stock shall vote separately as a class, the
Company shall not issue (and has not heretofore issued) any
shares of any other series of preferred stock having
priority over this series of preferred stock as to payment
of dividends (including dividends in arrears or in default)
or as to distribution of assets upon liquidation,
distribution or winding up of the Company.
4. The Stockholder shall not be obligated to sell and the
Company shall not be obligated to convert or redeem any of
said preferred stock prior to July 30, 1978.
5. Each preferred stock certificate shall have stamped thereon
a legend describing this redemption agreement or making
reference to this provision of this contract."
SERIES 4
"RESOLVED, that the Board of Directors of ConAgra, Inc., a Delaware
corporation, hereby authorizes the issuance of 14,000 shares of $50.00 par
value, 6% cumulative, non-participating, convertible, voting Preferred Stock
of this Company, which stock shall be legally equivalent in respect of
priorities upon dissolution and payment of dividends to the preferred stock of
the Company issued and outstanding, such stock to be known as Series 4,
Class B Preferred Stock and to be subject to the following relative rights and
preferences.
1. This preferred stock may be converted at any time after
issue from time to time, in whole or in part, at the option
of the Stockholders, or any of them, into common stock of
the Company at the rate of two and one-half (2-1/2) shares
of common stock for one (1) share of preferred stock plus
one (1) share of common stock for each $20.00 of accrued
dividends on such converted preferred stock. In case the
Company shall be recapitalized through the subdivision or
combination of its outstanding common stock into a greater
or smaller number of shares, then in each such case the
conversion ratio then in effect shall be reduced or
increased in the same proportion; provided, however, that at
any time after July 1, 1978 the Company may at its option
call for redemption all or any part of this preferred stock
which has not theretofore been converted pursuant to the
terms set forth in this paragraph, by paying therefor in
cash the par value thereof plus accrued dividends to the
date of payment, such sum being the redemption price;
provided further that at least thirty (30) days notice prior
to the redemption date shall be given to the holders of
record of such preferred stock addressed to the last post
office address shown on the records of the Company by
prepaid certified mail. On the date fixed for the
redemption each holder of such preferred shares shall have
the option to convert all or part of said preferred shares
to common stock as hereinbefore provided or accept
redemption of said shares and shall exercise said option by
prepaid, certified mail not less than twenty-five (25) days
after the date of the notice of redemption. On the date
fixed for redemption by said notice of redemption each
holder of preferred shares shall surrender such holder's
certificate or certificates at the place designated in such
notice and thereupon be entitled to receive, at his option,
the payment of the redemption price or the converted common
shares of stock. If notice of redemption is duly given and
if funds for the redemption have been set aside prior to the
redemption date, and if the stockholder has not exercised
his option in writing and surrendered his certificate or
certificates for his shares of said preferred stock, then no
dividend shall be payable on such shares after the date
fixed for redemption, and all rights with respect to shares
so called for redemption shall forthwith, after such date,
terminate, except only for the right of the holders to
receive the redemption price thereof, without interest.
2. Without the consent of the holders of a two-thirds majority
of this series of preferred stock at the time outstanding,
given in person or by proxy, either in writing or at a
meeting of shareholders at which the holders of this series
of preferred stock shall vote separately as a class, the
Company shall not issue (and has not heretofore issued) any
shares of any other series of preferred stock having
priority over this series of preferred stock as to payment
of dividends (including dividends in arrears or in default)
or as to distribution of assets upon liquidation,
distribution or winding up of the Company.
3. The Stockholders shall not be obligated to sell or convert
any of said preferred stock prior to July 30, 1978.
4. Each preferred stock certificate shall have stamped thereon
a legend describing this redemption agreement or making
reference to this provision of this contract."
SERIES 5
"RESOLVED, that the Board of Directors of ConAgra, Inc., a Delaware
corporation, hereby authorizes the issuance of 12,000 shares of $50.00 par
value, 6% cumulative, non-participating, convertible, voting Preferred Stock
of this Company, which stock shall be legally equivalent in respect of
priorities upon dissolution and payment of dividends to the preferred stock of
the Company issued and outstanding, such stock to be known as Series 5,
Class B Preferred Stock and to be subject to the following relative rights and
preferences:
1. This preferred stock may be converted at any time after
issue from time to time, in whole or in part, at the option
of the stockholders, or any of them, into common stock of
the Company, at the rate of two and one-half (2-1/2) shares
of common stock for one (1) share of preferred stock plus
one (1) share of common stock for each $20.00 of accrued
dividends on such converted preferred stock. In case the
Company shall be recapitalized through the subdivision or
combination of its outstanding common stock into a greater
or smaller number of shares, then in each such case the
conversion ratio then in effect shall be reduced or
increased in the same proportion; provided, however, that at
any time after July 1, 1978 the Company may at its option
call for redemption all of any part of this preferred stock
which has not theretofore been converted pursuant to the
terms set forth in this paragraph, by paying therefor in
cash the par value thereof plus accrued dividends to the
date of payment, such sum being the redemption price;
provided further that at least thirty (30) days notice prior
to the redemption date shall be given to the holders of
record of such preferred stock addressed to the last post
office address shown on the records of the Company by
prepaid certified mail. On the date fixed for redemption
each holder of such preferred shares shall have the option
to convert all or part of said preferred shares to common
stock as hereinbefore provided or accept redemption of said
shares and shall exercise said option by prepaid, certified
mail not less than twenty-five (25) days after the date of
the notice of redemption. On the date fixed for redemption
by said notice of redemption each holder of preferred shares
shall surrender such holder's certificate or certificates at
the place designated in such notice and thereupon be
entitled to receive, at his option, the payment of the
redemption price or the converted common shares of stock.
If notice of redemption is duly given and if funds for the
redemption have been set aside prior to the redemption date,
and if the stockholder has not exercised his option in
writing and surrendered his certificate or certificates for
his shares of said preferred stock, then no dividend shall
be payable on such shares after the date fixed for
redemption, and all rights with respect to shares so called
for redemption shall forthwith, after such date, terminate,
except only for the right of the holders to receive the
redemption price thereof, without interest.
2. Without the consent of the holders of a two-thirds majority
of this series of preferred stock at the time outstanding,
given in person or by proxy, either in writing or at a
meeting of shareholders at which the holders of this series
of preferred stock shall vote separately as a class, the
Company shall not issue (and has not heretofore issued) any
shares of any other series of preferred stock having
priority over this series of preferred stock as to payment
of dividends (including dividends in arrears or in default)
or as to distribution of assets upon liquidation,
distribution or winding up of the Company.
3. The Stockholders shall not be obligated to sell or convert
any of said preferred stock prior to July 30, 1978.
4. Each preferred stock certificate shall have stamped thereon
a legend describing this redemption agreement or making
reference to this provision."
SERIES 6
"RESOLVED, that the Board of Directors of ConAgra, Inc., a Delaware
corporation, hereby authorizes the issuance of 5,500 shares of $50.00 par
value, 6% cumulative, non-participating, convertible, voting Preferred Stock
of this Company, which stock shall be legally equivalent in respect of
priorities upon dissolution and payment of dividends to the preferred stock of
the Company issued and outstanding, such stock to be known as Series 6,
Class B Preferred Stock and to be subject to the following relative rights and
preferences:
1. This preferred stock may be converted at any time after
issue from time to time, in whole or in part, at the option
of the Stockholders, or any of them into common stock of the
Company at the ratio of two (2) shares of common stock for
one (1) share of preferred stock plus one (1) share of
common stock for each $25.00 of accrued dividends on such
converted preferred stock. In case the Company shall be
recapitalized through the subdivision or combination of its
outstanding common stock into a greater or smaller number of
shares or shall declare any stock splits or stock dividends,
then in each such case the conversion ratio then in effect
shall be reduced or increased in the same proportion;
provided, however, that at any time after August 1, 1979 the
Company may at its option call for redemption all or any
part of this preferred stock which has not theretofore been
converted pursuant to the terms set forth in this paragraph,
by paying therefore in cash the par value thereof plus
accrued dividends to the date of payment, such sum being the
redemption price; provided further that at least thirty (30)
days notice prior to the redemption date shall be given to
the holders of record of such preferred stock addressed to
the last post office address on the records of the Company
by prepaid certified mail. On the date fixed for redemption
each holder of such preferred shares shall have the option
to convert all or part of said preferred shares to common
stock as hereinbefore provided or accept redemption of said
shares and shall exercise said option by prepaid certified
mail not less than twenty-five (25) days after the date of
the notice of redemption. On the date fixed for redemption
by said notice of redemption each holder of preferred shares
shall surrender such holder's certificate or certificates at
the place designated in such notice and thereupon be
entitled to receive, at his option, the payment of the
redemption price or the converted common shares of stock.
If notice of redemption is duly given and if funds for the
redemption have been set aside prior to the redemption date,
and if the stockholder has not exercised his option in
writing and surrendered his certificate or certificates for
his shares of said preferred stock, then no dividend shall
be payable on such shares after the date fixed for
redemption, and all rights with respect to shares so called
for redemption shall forthwith, after such date, terminate,
except only for the right of the holders to receive the
redemption price thereof, without interest.
2. Without the consent of the holders of a two-thirds majority
of this series of preferred stock at the time outstanding,
given in person or by proxy, either in writing or at a
meeting of shareholders at which the holders of this series
of preferred stock shall vote separately as a class, the
Company shall not issue (and has not heretofore issued any
shares of any other series of preferred stock having
priority over this series of preferred stock as to payment
of dividends (including dividends in arrears or in default)
or as to distribution of assets upon liquidation,
distribution or winding up of the Company.
3. The Stockholders shall not be obligated to sell or convert
any of said preferred stock prior to August 1, 1979.
4. Each preferred stock certificate shall have stamped thereon
a legend describing this redemption agreement or making
reference to this provision of this contract."
SERIES 7
"RESOLVED, that the Board of Directors of ConAgra, Inc., a
Delaware corporation, hereby authorizes the issuance of 44,400 shares of
$50.00 par value, 7% cumulative, non-participating, convertible, voting
Preferred Stock of this Company, which stock shall be legally equivalent in
respect of priorities upon dissolution and payment of dividends to the
preferred stock of the Company issued and outstanding, such stock to be known
as Series 7, Class B Preferred Stock and to be subject to the following
relative rights and preferences:
1. The total Series 7 preferred stock may be converted after
issue pursuant to the following schedule, at the option of
the Stockholders, or any of them into common stock of the
Company at the rate of two (2) shares of common stock for
one (1) share of preferred stock plus one (1) share of
common stock for each $25.00 of accrued dividends on such
converted preferred stock, or at tendering shareholders
options such shares may be surrendered for redemption in
cash at par plus accrued dividends.
Year
After 6/18/73 Annual Cumulative Total
7th Year 11,100 11,100
8th Year 8,880 19,980
9th Year 8,880 28,860
10th Year 8,880 37,740
11th Year 6,660 44,400
The number of shares tendered by each of the Stockholders during
any annual period shall be in such proportion as agreed upon among
the Stockholders; provided that in the absence of written
notification to the Company to the contrary, signed by all of the
Stockholders, the shares tendered by any one of the Stockholders
during any annual period shall not exceed one-fourth of the annual
conversion privilege for that year as provided above, plus one-
fourth of the then remaining cumulative total from prior years.
In case the Company shall be recapitalized through the subdivision
or combination of its outstanding common stock into a greater or
smaller number of shares or shall declare any stock splits or
stock dividends, then in each such case the conversion ratio then
in effect shall be reduced or increased in the same proportion;
provided, however, that at any time after July 1, 1984, the
Company may at its option call for redemption all or any part of
this preferred stock which has not theretofore been converted
pursuant to the terms set forth in this paragraph, by paying
therefor in cash the par value thereof plus accrued dividends to
the date of payment, such sum being the redemption price; provided
further, that at least thirty (30) days notice prior to the
redemption date shall be given to the holders of record of such
preferred stock addressed to the last post office address shown on
the records of the Company. On the date fixed for redemption by
said notice of redemption each holder of preferred shares shall
surrender such holder's certificate or certificates at the place
designated in such notice and thereupon be entitled to receive the
payment of the redemption price. If notice of redemption is duly
given and if funds for the redemption have been set aside prior to
the redemption date, and if the stockholder has not surrendered
his certificate or certificates for his shares of said preferred
stock, then no dividend shall be payable on such shares after the
date fixed for redemption, and all rights with respect to shares
so called for redemption shall forthwith, after such date,
terminate, except only for the right of the holders to receive the
redemption price thereof, without interest.
2. Without the consent of the holders of a two-thirds majority of
this series of preferred stock at the time outstanding, given in
person or by proxy, either in writing or at a meeting of
shareholders at which the holders of this series of preferred
stock shall vote separately as a class, the Company shall not
issue (and has not heretofore issued) any shares of any other
series of preferred stock having priority over this series of
preferred stock as to payment of dividends (including dividends in
arrears or in default) or as to distribution of assets upon
liquidation, distribution or winding up of the Company.
3. Each preferred stock certificate shall have stamped thereon a
legend describing this redemption agreement or making reference to
this provision of this contract."
CERTIFICATE OF OWNERSHIP AND MERGER
MERGING CONAGRA, INC.
A NEBRASKA CORPORATION
INTO CONAGRA, INC.
A DELAWARE CORPORATION
____________________________________
Pursuant to Section 253 of the General Corporation Law of the State of
Delaware, ConAGra, Inc., a corporation organized and existing under the laws
of the State of Nebraska, does hereby certify:
FIRST: ConAgra, Inc., a Nebraska corporation, was incorporated pursuant
to the Business Corporation Act of the State of Nebraska, the provisions of
which permit the merger of a corporation of another state into a corporation
organized and existing under the laws of this state.
SECOND: ConAgra, Inc., a Nebraska corporation, owns all of the
outstanding shares of the stock of ConAgra, Inc., a corporation organized and
existing under the laws of the State of Delaware incorporated on December 5,
1975, pursuant to the General Corporation Law of this State.
THIRD: ConAgra, Inc., a Nebraska corporation, by a resolution of its
Board of Directors duly adopted as of the 15th day of December, 1975,
determined to merge itself into said ConAgra, Inc., a Delaware corporation,
which resolution is in the following words:
"WHEREAS, the stockholders of the company have approved the Plan
and Agreement of Merger by which the company's state of
incorporation would be changed from Nebraska to Delaware, which
Plan and Agreement of Merger was presented to the stockholders at
their annual meeting on October 28, 1975, and
"WHEREAS, the Board of Directors have determined that the
necessary steps should be taken in order that the merger can be
effectuated on January 12, 1976,
"BE IT RESOLVED, that the officers of the company are authorized
and directed to take all action and execute all documents
necessary in order to carry out the terms and conditions of the
Plan and Agreement of Merger between ConAgra, Inc., a Nebraska
corporation, and ConAgra, Inc., a Delaware corporation, in such a
manner that the merger will become effective on January 12, 1976,
and
"BE IT FURTHER RESOLVED, that upon the effective date of the
merger each of the issued and outstanding shares of capital stock
of the Nebraska corporation and all rights in respect thereof
shall be converted into one fully paid and nonassessable share of
capital stock of the Delaware corporation and each certificate
nominally representing shares of the capital stock of the Nebraska
corporation shall for all purposes be deemed to evidence the
ownership of a like number of shares of capital stock of the
Delaware corporation."
FOURTH: The proposed merger was submitted to the shareholders of the
undersigned corporation at an annual meeting of shareholders held on October
28, 1975, and at that meeting more than two-thirds of the outstanding stock of
the undersigned corporation entitled to vote on the merger voted in favor of
the same and that such meeting was held after twenty days notice to
shareholders of the purpose of the meeting mailed to each such shareholder at
his address as the same appeared on the records of the corporation. At the
time of the meeting, there were outstanding 3,411,165 shares of capital stock
of the company entitled to vote on the merger and that the following number of
shares voted in favor of the merger: 2,462,572. The following number of
shares voted against the merger: 187,896.07. The following number of shares
abstained: 203,828.
FIFTH: This merger shall become effective on January 12, 1976, or the
date of filing of this Certificate, whichever shall occur later.
IN WITNESS WHEREOF, said ConAgra, Inc., a Nebraska corporation, has
caused this Certificate to be signed by its President and its Secretary this
19th day of December, 1975.
ConAgra, Inc., a Nebraska corporation
/s/ CLAUDE I. CARTER
By___________________________________
Claude I. Carter, President
/s/ J. W. GOODRICH
Attest: By___________________________________
J.W. Goodrich, Secretary
CERTIFICATE OF AMENDMENT
TO CERTIFICATE OF INCORPORATION
__________________________
Pursuant to Section 242 of the General Corporation Law of the State of
Delaware, ConAgra, Inc., a corporation organized and existing under the laws
of the State of Delaware, does hereby certify:
FIRST: The Certificate of Incorporation for ConAgra, Inc. was filed in
the office of the Delaware Secretary of State on December 5, 1975.
SECOND: At a special meeting of stockholders of the company, held on
May 24, 1976, an amendment to the Certificate of Incorporation was duly
adopted in accordance with the provisions of Section 242 of the Delaware
General Corporation Law; the amendment so adopted is set forth on Exhibit "A"
attached hereto and made a part hereof.
IN WITNESS WHEREOF, said ConAgra, Inc., a Delaware corporation, has
caused this Certificate to be signed by its President and its Secretary this
24th day of May, 1976.
CONAGRA, INC., A Delaware Corporation
/s/ C. M. HARPER
By ___________________________________
C.M. Harper, President
Attest:
/s/ J.W. GOODRICH
By____________________________
J.W. Goodrich, Secretary
EXHIBIT "A"
ARTICLE XIV
Additional Voting Rights
"A. Except as otherwise expressly provided in Paragraph B of this
Article XIV:
(i) any merger or consolidation of the Corporation with or into
any other corporation;
(ii) any sale, lease, exchange, or other disposition of all or
any substantial part of the assets of the Corporation to or with any
other corporation, person or other entity; or
(iii) the issuance or transfer of any securities of the
Corporation to any other corporation, person or other entity in exchange
for assets, securities or cash or a combination thereof;
shall require the affirmative vote of the holders of
(a) at least 75% of the outstanding shares of capital stock of
the Corporation entitled to vote generally in the election
of directors, and
(b) at least a majority of the outstanding shares of capital
stock of the Corporation which are not beneficially owned by
such corporation, person or other entity,
if, as of the record date for the determination of stockholders entitled
to notice thereof and to vote on any transaction described in clauses
(i), (ii), or (iii) above, such other corporation, person or entity is
the beneficial owner, directly or indirectly, of 5% or more of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors. Such affirmative vote shall be
required notwithstanding the fact that no vote may be required, or that
some lesser percentage may be specified, by law or in any agreement with
any national securities exchange.
B. The provisions of this Article XIV shall not apply to any
transaction described in clauses (i), (ii) or (iii) of Paragraph A of
this Article, (i) with another corporation if a majority, by vote, of
the outstanding shares of all classes of capital stock of such other
corporation entitled to vote generally in the election of directors,
considered for this purpose as one class, is owned of record or
beneficially by the Corporation and/or its subsidiaries; (ii) with
another corporation, person or other entity if the Board of Directors of
the Corporation shall by resolution have approved a memorandum of
understanding or form of contract with such other corporation, person or
entity with respect to and substantially consistent with such other
transaction prior to the time such other corporation, person or other
entity became the beneficial owner, directly or indirectly, of 5% or
more of the outstanding shares of capital stock of the Corporation
entitled to vote generally in the election of directors; or (iii)
approved by resolution adopted by a vote of three-quarters of the entire
Board of Directors of the Corporation at any time prior to the
consummation of any such transaction described in clauses (i), (ii) or
(iii) of Paragraph A of this Article.
C. For the purposes of this Article XIV, a corporation, person or other
entity shall be deemed to be the beneficial owner of any shares of
capital stock of the Corporation (i) which it has the right to acquire
pursuant to any agreement, or upon exercise of conversion rights,
warrants or options, or otherwise, or (ii) which are beneficially owned,
directly or indirectly (including shares deemed owned through
application of clause (i) above), by any other corporation, person or
other entity (a) with which it or its "affiliate" or "associate" (as
defined below) has any agreement, arrangement or understanding for the
purpose of acquiring, holding, voting or disposing of capital stock of
the Corporation or (b) which is its "affiliate" or "associate" as those
terms are defined in Rule 12b-2 of the General Rules and Regulations
under the Securities Exchange Act of 1934 as amended.
D. This Article XIV may not be amended or rescinded except by the
affirmative vote of the holders of at least 75% of the outstanding
shares of capital stock of the Corporation entitled to vote generally in
the election of directors."
CERTIFICATE OF AMENDMENT
TO CERTIFICATE OF INCORPORATION
OF
CONAGRA, INC.
_______________________
Pursuant to Section 242 of the General Corporation Law of the State of
Delaware, ConAgra, Inc., a corporation organized and existing under the laws
of the State of Delaware, does hereby certify:
FIRST: The Certificate of Incorporation for ConAgra, Inc. was filed in
the office of the Delaware Secretary of State on December 5, 1975.
SECOND: At a special meeting of the stockholders of the company, held
on April 12, 1977, an amendment to Article IV of the Certificate of
Incorporation was duly adopted in accordance with the provisions of Section
242 of the Delaware General Corporation Law; the amendment so adopted is set
forth on Exhibit "A" attached hereto and made a part hereof.
SECOND: At a special meeting of the stockholders of the company, held
on April 12, 1977, an amendment to Article VII, Paragraph (a) of the
Certificate of Incorporation was duly adopted in accordance with the
provisions of Section 242 of the Delaware General Corporation Law; the
amendment so adopted is set forth on Exhibit "B" attached hereto and made a
part hereof.
IN WITNESS WHEREOF, said ConAgra, Inc., a Delaware corporation, has
caused this Certificate to be signed by its President and its Secretary this
13th day of April, 1977.
ConAgra, Inc., A Delaware Corporation
/s/ C.M. HARPER
By:_____________________________
C.M. Harper, President
Attest:
/s/ J.W. Goodrich, Secretary
By:_______________________________
J.W. Goodrich, Secretary
EXHIBIT A
ARTICLE IV
AUTHORIZED SHARES
The capital stock of said corporation shall be Eighty-Two Million Five
Hundred Thousand Dollars ($82,500,000) divided into ten million (10,000,000)
shares of common stock of a par value of Five Dollars ($5.00) per share, one
hundred fifty thousand (150,000) shares of Class B Preferred Stock of a par
value of Fifty Dollars ($50.00) per share, and two hundred fifty thousand
($250,000) shares of Class C Preferred Stock of a par value of One Hundred
Dollars ($100.00) per share.
The Class B Preferred Shares of this corporation may be divided into and
issued in series, and each series shall be so designated as to distinguish the
shares thereof from the shares of all other series and classes. All shares of
this Class shall be identical except as to the following relative rights and
preferences as to which there may be variations between different series
within Class B as determined by the Board of Directors: (a) The rate of
dividend; (b) Whether the shares may be redeemed and, if so, the redemption
price and the terms and conditions of redemption; (c) The amount payable upon
shares in event of voluntary or involuntary liquidation; (d) Sinking fund
provisions, if any, for the redemption or purchase of shares; (e) The terms
and conditions, if any, on which shares may be converted.
The Class C Preferred Shares of this corporation may be divided into and
issued in series, and each series shall be so designated as to distinguish the
shares thereof from the shares of all other series and classes. The shares of
this Class shall not have any priority over Class B Preferred Stock as to
payment of dividends or as to distribution of assets upon liquidation,
distribution or winding up of the corporation. All shares of this Class shall
be identical except as to the following relative rights and preferences as to
which there may be variations between different series within Class C as
determined by the Board of Directors: (a) Whether such shares shall be granted
voting rights and, if so, to what extent, and upon what terms and conditions;
(b) The rates and times at which and the terms and conditions on which,
dividends on such shares shall be paid and any dividend rights of cumulation;
(c) Whether such shares shall be granted conversion rights, and, if so, upon
what terms and conditions; (d) Whether the corporation shall have the right to
redeem such shares and, if so, upon what terms and conditions; (d) The
liquidation rights (if any) of such shares, including whether such shares
shall enjoy any liquidation preference over the common stock; and (f) Such
other designations, preferences relative rights and limitations (if any)
attaching to such shares.
No transfer of stock of this corporation shall be operative until
entered upon the books of the corporation.
EXHIBIT B
ARTICLE VII, PARAGRAPH (a)
The affairs of this Corporation shall be conducted by a Board of
Directors. The number of directors of the Corporation, not less than seven
nor more than twelve, shall be fixed from time to time by the By-Laws.
Commencing with the annual election of directors by the stockholders of the
Corporation in 1977, the directors of the Corporation shall be divided into
three classes: Class I, Class II and Class III, each such class, as nearly as
possible, to have the same number of directors. The term of office of the
initial Class I directors shall expire at the annual election of directors by
the stockholders of the corporation in 1978, the term of office of the initial
Class II directors shall expire at the annual election of directors by the
stockholders of the corporation in 1979, and the term of office of the initial
Class III directors shall expire at the annual election of directors by the
stockholders of the corporation in 1980, or in each case thereafter when their
respective successors are elected by the stockholders and qualify. At each
annual election of directors by the stockholders of the corporation held after
1977, the directors chosen to succeed those whose terms are then expired shall
be identified as being of the same class as the directors they succeed and
shall be elected by the stockholders of the corporation for a term expiring at
the third succeeding annual election of directors, or thereafter when their
respective successors in each case are elected by the stockholders and
qualify.
The provisions set forth in Article VII(a) may not be repealed or
amended in any respect unless such repeal or amendment is approved by (i) the
affirmative vote of the holders of not less than 80% of the total voting power
of all outstanding shares of stock of this Corporation, or (ii) the
affirmative vote of not less than 75% of the members of the Board of Directors
of this Corporation and the affirmative vote of the holders of a majority of
the total voting power of all outstanding shares of stock of this Corporation.
CERTIFICATE OF AMENDMENT
TO CERTIFICATE OF INCORPORATION
_______________________________
Pursuant to Section 242 of the General Corporation Law of the
State of Delaware, ConAgra, Inc., a corporation organized and existing under
the laws of the State of Delaware, does hereby certify:
FIRST: The Certificate of Incorporation for ConAgra, Inc. was
filed in the office of the Delaware Secretary of State on December 5, 1975.
SECOND: At the annual meeting of stockholders of the company held
on September 20, 1977, an amendment to the Certificate of Incorporation was
duly adopted in accordance with the provisions of Section 242 of the Delaware
General Corporation Law; the amendment so adopted is set forth on Exhibit "A"
attached hereto and made a part hereof.
IN WITNESS WHEREOF, said ConAgra, Inc., a Delaware corporation,
has caused this Certificate of Amendment to be signed by its President and
Secretary this 20th day of September, 1977.
ConAgra, Inc., a Delaware Corporation
/s/ C.M. HARPER
By__________________________________
C.M. Harper, President
Attest:
/s/ J.W. GOODRICH
By________________________________
J.W. Goodrich, Secretary
EXHIBIT A
ARTICLE XV
CERTAIN BUSINESS COMBINATIONS
1. The affirmative vote or consent of the holders of ninety-five
percent (95%) of all shares of stock of the Corporation entitled to vote in
elections of directors, considered for the purposes of this Article XV as one
class, shall be required for the adoption or authorization of a business
combination (as hereinafter defined) with any other entity (as hereinafter
defined) if, as of the record date for the determination of stockholders
entitled to notice thereof and to vote thereon or consent thereto, such other
entity is the beneficial owner, directly or indirectly, of more than thirty
percent (30%) of the outstanding shares of stock of the Corporation entitled
to vote in elections of directors considered for the purposes of this Article
XV as one class; provided that such ninety-five percent (95%) voting
requirement shall not be applicable if:
(a) The cash, or fair market value of other consideration, to be
received per share by common stockholders of the Corporation in such business
combination bears the same or a greater percentage relationship to the market
price of the Corporation's Common Stock immediately prior to the announcement
of such business combination as the highest per share price (including
brokerage commissions and/or soliciting dealers fees) which such other entity
has theretofore paid for any of the shares of the Corporation's Common Stock
already owned by it bears to the market price of the Common Stock of the
Corporation immediately prior to the commencement of acquisition of the
Corporation's Common Stock by such other entity;
(b) The cash, or fair market value of other consideration, to be
received per share by common stockholders of the Corporation in such business
combination (i) is not less than the highest per share price (including
brokerage commissions and/or soliciting dealers' fees) paid by such other
entity in acquiring any of its holdings of the Corporation's Common Stock, and
(ii) is not less than the earnings per share of Common Stock of the
Corporation for the four full consecutive fiscal quarters immediately
preceding the record date for solicitation of votes on such business
combination, multiplied by the then price-earnings multiple (if any) of such
other entity as customarily computed and reported in the financial community.
(c) After such other entity has acquired a thirty percent (30%)
interest and prior to the consummation of such business combination: (i) such
other entity shall have taken steps to ensure that the Corporation's Board of
Directors included at all times representation by continuing director(s) (as
hereinafter defined) proportionate to the stockholdings of the Corporation's
public common stockholders not affiliated with such other entity (with a
continuing director to occupy any resulting fractional board position); (ii)
there shall have been no reduction in the rate of dividends payable on the
Corporation's Common Stock except as necessary to insure that a quarterly
dividend payment does not exceed 15% of the net income of the Corporation for
the four full consecutive fiscal quarters immediately preceding the
declaration date of such dividend, or except as may have been approved by a
unanimous vote of the directors; (iii) such other entity shall not have
acquired any newly issued shares of stock, directly or indirectly, from the
Corporation (except upon conversion of convertible securities acquired by it
prior to obtaining a thirty percent (30%) interest or as a result of a pro
rata stock dividend or stock split); and (iv) such other entity shall not have
acquired any additional shares of the Corporation's outstanding Common Stock
or securities convertible into Common Stock except as a part of the
transaction which results in such other entity acquiring its thirty percent
(30%) interest;
(d) Such other entity shall not have (i) received the benefit, directly
or indirectly (except proportionately as a stockholder) of any loans,
advances, guarantees, pledges or other financial assistance or tax credits
provided by the Corporation, or (ii) made any major change in the
Corporation's business or equity capital structure without the unanimous
approval of the directors, in either case prior to the consummation of such
business combination; and
(e) A proxy statement responsive to the requirements of the Securities
Exchange Act of 1934 shall be mailed to public stockholders of the Corporation
for the purpose of soliciting stockholder approval of such business
combination and shall contain at the front thereof, in a prominent place, any
recommendations as to the advisability (or inadvisability) of the business
combination which the continuing directors, or any of them, may choose to
state and, if deemed advisable by a majority of the continuing directors, an
opinion of a reputable investment banking firm as to the fairness (or not) of
the terms of such business combination, from the point of view of the
remaining public stockholders of the Corporation (such investment banking firm
to be selected by a majority of the continuing directors and to be paid a
reasonable fee for their services by the Corporation upon receipt of such
opinion).
The provisions of this Article XV shall also apply to a business
combination with any other entity which at any time has been the beneficial
owner, directly or indirectly, of more than thirty percent (30%) of the
outstanding shares of stock of the Corporation entitled to vote in elections
of directors considered for the purposes of this Article XV as one class,
notwithstanding the fact that such other entity has reduced its shareholdings
below thirty percent (30%) if, as of the record date for the determination of
stockholders entitled to notice of and to vote on or consent to the business
combination, such other entity is an "affiliate" of the Corporation (as
hereinafter defined).
2. As used in this Article XV, (a) the term "other entity" shall
include any corporation, person or other entity and any other entity with
which it or its "affiliate" or "associate" (as defined below) has any
agreement, arrangement or understanding, directly or indirectly, for the
purpose of acquiring, holding, voting or disposing of stock of the
Corporation, or which is its "affiliate" or "associate" as those terms are
defined in Rule 12b-2 of the General Rules and Regulations under the
Securities Exchange Act of 1934 as in effect on January 1, 1975, together with
the successors and assigns of such persons in any transaction or series of
transactions not involving a public offering of the Corporation's stock within
the meaning of the Securities Act of 1933; (b) another entity shall be deemed
to be the beneficial owner of any shares of stock of the Corporation which the
other entity (as defined above) has the right to acquire pursuant to any
agreement, or upon exercise of conversation rights, warrants or options, or
otherwise; (c) the outstanding shares of any class of stock of the Corporation
shall include shares deemed owned through application of clause (b) above but
shall not include any other shares which may be issuable pursuant to any
agreement, or upon exercise of conversion rights, warrants or options, or
otherwise; (d) the term "business combination" shall include any merger or
consolidation of the Corporation with or into any other corporation, or the
sale or lease of all or any substantial part of the assets of the Corporation
to, or any sale or lease to the Corporation or any subsidiary thereof in
exchange for securities of the Corporation of any assets (except assets having
an aggregate fair market value of less than $5 million) of any other entity;
(e) the term "continuing director" shall mean a person who was a member of the
Board of Directors of the Corporation elected by the public stockholders prior
to the time that such other entity acquired in excess of ten percent (10%) of
the stock of the Corporation entitled to vote in the election of directors, or
a person recommended to succeed a continuing director by a majority of
continuing directors; and (f) for the purposes of subparagraphs 1(a) and (b)
of this Article XV the term "other consideration to be received" shall mean
Common Stock of the Corporation retained by its existing public stockholders
in the event of a business combination with such other entity in which the
Corporation is the surviving corporation.
3. A majority of the continuing directors shall have the power and
duty to determine for the purposes of this Article XV on the basis of
information known to them whether (a) such other entity beneficially owns more
than thirty percent (30%) of the outstanding shares of stock of the
Corporation entitled to vote in election of directors, (b) an other entity is
an "affiliate" or "associate" (as defined above) of another, (c) another
entity has an agreement, arrangement or understanding with another, or (d) the
assets being acquired by the Corporation, or any subsidiary thereof, have an
aggregate fair market value of less than $5,000,000.
4. No amendment to the Certificate of Incorporation of the
Corporation shall amend, alter, change or repeal any of the provisions of this
Article XV unless the amendment effecting such amendment, alteration, change
or repeal shall receive the affirmative vote or consent of the holders of
ninety-five percent (95%) of all shares of stock of the Corporation entitled
to vote in election of directors, considered for the purposes of this Article
XV as one class; provided that this paragraph 4 shall not apply to, and such
ninety-five percent (95%) vote or consent shall not be required for, any
amendment, alteration, change or repeal recommended to the stockholders by a
vote of eighty percent (80%) of the Board of Directors of the Corporation
present at a regularly and validly convened meeting of directors at corporate
headquarters, if at least eighty percent (80%) of the full Board of Directors
are persons who would be eligible to serve as "continuing directors" within
the meaning of paragraph 2 of this Article XV.
5. Nothing contained in this Article XV shall be construed to relieve
any other entity from any fiduciary obligation imposed by law.
STATEMENT OF RESOLUTION ESTABLISHING SERIES
OF CLASS C PREFERRED SHARES OF
CONAGRA, INC.
Pursuant to Section 151(g) of the General Corporation Law of the
State of Delaware, ConAgra, Inc., a corporation organized and existing under
the laws of the State of Delaware, does hereby certify that the following
resolution providing for the issuance of 22,500 shares of Series 1, Class C
Preferred Stock was adopted by its Board of Directors pursuant to authority
expressly vested in it by the provisions of the Certificate of Incorporation
of ConAgra, Inc., as amended:
"RESOLVED, that the Board of Directors of ConAgra, Inc., a
Delaware corporation, hereby authorizes the issuance of 22,500
shares of $100 par value, 6% Cumulative, Non-Participating,
Convertible, Voting Preferred Stock of this Company, said shares
to be known as Series 1, Class C Preferred Stock and shall be
subject to the following relative rights and preferences:
(i) The Series 1, Class C, Preferred Stock shall not
have any priority over any shares of preferred
stock, Class B, as to payment of dividends or as to
the distribution of assets upon liquidation,
distribution, or winding up of the Company.
(ii) Priority of such shares upon dissolution of the
issuer shall be legally equivalent to all other
preferred shares of the Company issued and
outstanding at the date of issuance of such Series
1, Class C Preferred Stock.
(iii)The holders of this preferred stock shall be entitled to
receive dividends thereon not less frequently than
quarterly.
(iv) All or any part of such preferred stock may be called for
redemption by the Company, at its option, at any time after
two (2) years from its date of issue, by paying therefor in
cash the par value thereof plus accrued dividends to the
date of payment, such sum being the redemption price. At
least thirty (30) days' notice prior to the redemption date,
by prepaid certified mail, shall be given to the holders of
record of such preferred stock, addressed to the last post
office address shown on the records of the Company. On the
date fixed for redemption, and stated in such notice, each
holder of preferred shares shall surrender such holder's
certificate or certificates at the place designated in such
notice and thereupon be entitled to receive payment of the
redemption price. If notice of redemption is duly given and
if funds for the redemption have been set aside prior to the
redemption date, notwithstanding the fact that a stockholder
may have failed to surrender the same, no dividend shall be
payable on such shares after the date fixed for redemption,
and all rights with respect to shares so called for
redemption shall forthwith, after such date, terminate,
except only the right of the holders to receive the
redemption price thereof, without interest.
(v) All or any part of such preferred stock may be tendered by
the holders thereof, at their option, at any time after five
(5) years from its date of issue, for redemption by the
Company and upon such tender in the manner provided herein,
the Company shall pay such holder or holders the par value
thereof plus accrued dividends to the date of payment, such
sum being the redemption price. Upon receipt of notice by
such holder, the Company shall give such holder notice of
the redemption date, by prepaid certified mail, addressed to
the last post office address shown on the records of the
Company, which redemption date shall be within thirty (30)
days after mailing such notice. On the date fixed for
redemption, and stated in such notice, such holder of
preferred shares shall surrender such holder's certificate
or certificates to the Company and thereupon be entitled to
receive payment of the redemption price. If notice of
redemption is duly given and if funds for the redemption
have been set aside prior to the redemption date,
notwithstanding the fact that a stockholder may have failed
to surrender the same, no dividend shall be payable on such
shares after the date fixed for redemption, and all rights
with respect to shares so tendered for redemption shall
forthwith, after such date, terminate, except only the right
of the holders to receive the redemption price thereof,
without interest.
(vi) Such preferred stock may be converted at any time after ten
(10) years from its date of issue at the option of the
holders, or any of them, into common stock of the Company at
the rate of four and forty-four hundredths (4.44) shares of
common stock for one (1) share of preferred stock (rounded
down to the nearest whole share) plus cash for accrued
dividends on converted preferred to and including the date
of issuance of such common stock. In case the Company shall
be recapitalized through the subdivision or combination of
its outstanding common stock into a greater or smaller
number of shares (excepting, however, stock dividends) then
in each such case the conversion ratio in effect shall be
reduced or increased in the same proportion, provided,
however, that at any time after ten (10) from its date of
issue the Company may call for redemption all or any part of
this preferred stock which has not theretofore been
converted in the same manner as set forth above; provided,
however, any election to convert such preferred stock into
common stock of the Company shall be deemed to be an
election by such holder to convert all preferred shares
owned by such holder to common stock of the Company and, in
no event, shall any such conversion result in a holder
holding both preferred and common stock of the Company.
(vii)Without the written consent of the holders of a two-thirds
(2/3) majority of this series of preferred stock at the time
outstanding, given in person or by proxy, either in writing
or at a meeting of shareholders at which the holders of this
series of preferred stock shall vote separately as a class,
the Company shall not hereafter issue any shares of any
other series of this Class C Preferred Stock having priority
over this series of preferred stock as to payment of
dividends (including dividends in arrears or in default) or
as to distribution of assets upon liquidation, distribution
or winding up of the Company.
(viii) Each preferred stock certificate shall have stamped
thereon a legend describing this redemption
agreement or making reference to this provision."
IN WITNESS WHEREOF, said ConAgra, Inc., a Delaware corporation,
has caused this Statement of Resolution to be signed by its President and its
Secretary this 24th day of May, 1978.
ConAgra, Inc., a Delaware
corporation
/s/ C. M. HARPER
By___________________________
C. M. Harper, President
ATTEST:
/s/ J. W. GOODRICH
By________________________________
J. W. Goodrich, Secretary
CERTIFICATE OF CORRECTION TO
STATEMENT OF RESOLUTION ESTABLISHING SERIES
OF CLASS C PREFERRED SHARES OF CONAGRA, INC.
Pursuant to Section 103(f) of the General Corporation Law of the
State of Delaware, ConAgra, Inc., a corporation organized under the laws of
the State of Delaware, does hereby file this Certificate of Correction to
Statement of Resolution Establishing Series of Class C Preferred Shares of
ConAgra, Inc. Said Statement of Resolution was originally filed with the
Secretary of State of the State of Delaware on May 26, 1978, and contained an
inaccurate and incomplete statement of the resolution adopted by the Board of
Directors of ConAgra, Inc. Because of the significant differences in the
language of the resolution contained in said Statement of Resolution and that
actually adopted, the resolution is herein restated in its entirety. ConAgra,
Inc. does hereby certify that the following resolution providing for the
issuance of 22,500 shares of Series 1, Class C Preferred Stock was adopted by
its Board of Directors pursuant to authority expressly vested in it by the
provisions of the Certificate of Incorporation of ConAgra, Inc., as amended:
"RESOLVED, that the Board of Directors of ConAgra, Inc., a
Delaware corporation, hereby authorizes the issuance of 22,500
shares of $100 par value, 6% Cumulative, Non-Participating,
Convertible, Voting Preferred Stock of this Company, said shares
to be known as Series 1, Class C Preferred Stock and shall be
subject to the following relative rights and preferences:
(i) The Series 1, Class C, Preferred Stock shall not have any
priority over any shares of preferred stock, Class B, as
to payment of dividends or as to the distribution of
assets upon liquidation, distribution, or winding up of
the Company.
(ii) Priority of such shares upon dissolution of the issuer
shall be legally equivalent to all other preferred shares
of the Company issued and outstanding at the date of
issuance of such Series 1, Class C Preferred Stock.
(iii) The dividends upon the preferred stock shall be cumulative
from the date of issue thereof so that if dividends for
any past dividend period at the rate of six per centum
(6%) of the par value thereof per share, per annum shall
not have been paid thereon, or declared and a sum
sufficient for payment thereof set apart, the deficiency
shall be fully paid or set apart but without interest,
before any dividend shall be paid upon or set apart for
the common stock. Whenever the full dividend upon the
preferred stock for all past dividend periods shall have
been paid, and the full dividend thereon for the then
current dividend period shall have been paid or declared
and a sum sufficient for the payment thereof set apart,
dividends upon the common stock may be declared by the
board of directors out of the remainder of the assets
available therefor.
(iv) The holders of the Series 1, Class C Preferred Stock shall
be entitled to receive dividends thereon not less
frequently than quarterly.
(v) All or any part of such preferred stock may be called for
redemption by the Company, at its option, at any time
after ten (10) years from its date of issue, by paying
therefor in cash the par value thereof plus accrued
dividends to the date of payment, such sum being the
redemption price. At least thirty (30) days' notice prior
to the redemption date, by prepaid certified mail, shall
be given to the holders of record of such preferred stock,
addressed to the last post office address shown on the
records of the Company. On the date fixed for redemption,
and stated in such notice, each holder of preferred stock
shall surrender such holder's certificate or certificates
at the place designated in such notice and thereupon be
entitled to receive payment of the redemption price. If
notice of redemption is duly given and if funds for the
redemption have been set aside prior to the redemption
date, notwithstanding the fact that a stockholder may have
failed to surrender the same, no dividend shall be payable
on such shares after the date fixed for redemption, and
all rights with respect to shares so called for redemption
shall forthwith, after such date, terminate, except only
the right of the holders to receive the redemption price
thereof, without interest.
(vi) All or any part of such preferred stock may be tendered by
the holders thereof, at their option, at any time after
five (5) years from its date of issue for redemption by
the Company and upon such tender in the manner provided
herein, the Company shall pay such holder or holders the
par value thereof, plus accrued dividends to the date of
payment, such sum being the redemption price. Upon
receipt of notice by such holder, the Company shall give
such holder notice of the redemption date, by prepaid
certified mail, addressed to the last post office address
shown on the records of the Company, which redemption date
shall be within thirty (30) days after receiving such
notice. On the date fixed for redemption, and stated in
such notice, such holder of preferred stock shall
surrender such holder's certificate or certificates to the
Company and thereupon be entitled to receive payment of
the redemption price. If notice of redemption is duly
given and if funds for the redemption have been set aside
prior to the redemption date, notwithstanding the fact
that a stockholder may have failed to surrender the same,
no dividend shall be payable on such shares after the date
fixed for redemption, and all rights with respect to
shares so tendered for redemption shall forthwith, after
such date, terminate, except only the right of the holders
to receive the redemption price thereof, without interest.
(vii) Such preferred stock may be converted at any time after
two (2) years from its date of issue, at the option of the
holders, or any of them, into common stock of the Company
at the rate of four and forty-four hundredths (4.44)
shares of common stock for one (1) share of preferred
stock (rounded down to the nearest whole share) plus cash
for accrued dividends on converted preferred to and
including the date of issuance of such common stock. In
case the Company shall be recapitalized through the
subdivision or combination of its outstanding common stock
into a greater or smaller number of shares or shall issue
any stock dividends or warrants generally to its
stockholders, then in each such case, the conversion ratio
in effect shall be reduced or increased in the same
proportion; provided, however, that at any time after ten
(10) years from its date of issue, the Company may call
for redemption all or any part of this preferred stock
which has not theretofore been converted pursuant to the
terms set forth in this paragraph, by paying therefor in
cash the par value thereof plus accrued dividends to the
date of payment, such sum being the redemption price,
provided, further, that at least thirty (30) days notice
prior to the redemption date shall be given to the holders
of record of such preferred stock addressed to the last
post office address shown on the records of the Company by
prepaid certified mail. On the date fixed for the
redemption each holder of such preferred shares shall have
the option to convert said preferred shares to common
stock as hereinbefore provided or accept redemption of
said shares and shall exercise said option by prepaid,
certified mail not less than twenty-five (25) days after
the date of the notice of redemption. On the date fixed
for redemption by said notice of redemption each holder of
preferred shares shall surrender such holder's certificate
or certificates at the place designated in such notice and
thereupon be entitled to receive, at his option, the
payment of the redemption price or the converted common
shares of stock. If notice of redemption is duly given
and if funds for the redemption have been set aside prior
to the redemption date, and if the stockholder has not
exercised his option in writing to convert his preferred
stock into common and surrendered his certificate or
certificates for his shares of said preferred stock, then
no dividend shall be payable on such shares after the date
fixed for redemption, and all rights with respect to
shares so called for redemption shall forthwith, after
such date, terminate, except only for the right of the
holders to receive the redemption price thereof, without
interest. Any election to convert such preferred stock
into common stock of the Company pursuant to the terms set
forth in this paragraph shall be deemed to be an election
by such holder to convert all preferred shares owned by
such holder to common stock of the Company, and, in no
event, shall any such conversion result in a holder
holding both preferred and common stock of the Company.
(viii)Without the written consent of the holders of a two-thirds
(2/3) majority of this series of preferred stock at the
time outstanding, given in person or by proxy, either in
writing or at a meeting of shareholders at which the
holders of this series of preferred stock shall vote
separately as a class, the Company shall not hereafter
issue any shares of any other series of preferred stock
having priority over this series of preferred stock as to
payment of dividends (including dividends in arrears or in
default) or as to distribution of assets upon liquidation,
distribution or winding up of the Company.
(ix) In the event of any liquidation, dissolution or winding up
of the affairs of the Company, whether voluntary or
involuntary, the holders of the preferred stock shall be
entitled, before any assets of the Company shall be
distributed among or paid over to the holders of the
common stock, to be paid the par value thereof, together
with a sum of money equivalent to dividends at the rate of
six per centum (6%) per annum on the par value thereof
from the date of issue to the date of payment thereof,
less the amount of dividends theretofore paid thereon and
to no more. If, upon such liquidation, dissolution or
winding up, the assets of the Company distributable as
aforesaid among the holders of preferred stock shall be
insufficient to permit payment to them of said amount, the
entire assets shall be distributed ratably among the
holders of any preferred stock issued and outstanding and
having such priority.
(x) Each preferred stock certificate shall have stamped
thereon a legend describing this redemption agreement or
making reference to this provision.
(xi) The term "date of issue" means the original issue date of
the preferred stock, which shall be not later than ten
(10) days after the Effective Date.
IN WITNESS WHEREOF, ConAgra, Inc., a Delaware corporation has
caused this Certificate of Correction to be signed by its President and its
Secretary this 1st day of June, 1978.
ConAgra, Inc., a Delaware
Corporation
/s/ C.M. HARPER
By__________________________
C.M. Harper, President
ATTEST:
/s/ J. W. GOODRICH
By______________________________
J. W. Goodrich, Secretary
CERTIFICATE OF AMENDMENT
TO CERTIFICATE OF INCORPORATION
_______________________________
Pursuant to Section 242 of the General Corporation Law of the
State of Delaware, ConAgra, Inc., a corporation organized and existing under
the laws of the State of Delaware, does hereby certify:
FIRST: The Certificate of Incorporation for ConAgra, Inc. was
filed in the office of the Delaware Secretary of State on December 5, 1975.
SECOND: At the annual meeting of stockholders of the company held
on September 19, 1978, an amendment to the Certificate of Incorporation was
duly adopted in accordance with the provisions of Section 242 of the Delaware
General Corporation Law; the amendment so adopted is set forth on Exhibit "A"
attached hereto and made a part hereof.
IN WITNESS WHEREOF, said ConAgra, Inc., a Delaware corporation,
has caused this Certificate of Amendment to be signed by its President and
Secretary this 20th day of September, 1978.
ConAgra, Inc., A Delaware Corporation
/s/ C.M. HARPER
By__________________________________
C.M. Harper, President
Attest:
/s/ J.W. GOODRICH
________________________________
J.W. Goodrich, Secretary
Exhibit A
ARTICLE XVI
EFFECTS OF BUSINESS COMBINATIONS
The Board of Directors of the Corporation, when evaluating any
offer of another party to (a) make a tender or exchange offer for any equity
security of the Corporation, (b) merge or consolidate the Corporation with
another corporation, or (c) purchase or otherwise acquire all or substantially
all of the properties and assets of the Corporation, shall, in connection with
the exercise of its judgment in determining what is in the best interests of
the Corporation and its stockholders, give due consideration to all relevant
factors, including without limitation the social and economic effects on the
employees, customers, suppliers and other constituents of the Corporation and
its subsidiaries and on the communities in which the Corporation and its
subsidiaries operate or are located.
AMENDED STATEMENT OF RESOLUTION ESTABLISHING SERIES 3
OF CLASS B PREFERRED SHARES OF
CONAGRA, INC.
Pursuant to Section 151(g) of the General Corporation Law
of the State of Delaware, ConAgra, Inc., a corporation organized and existing
under the laws of the State of Delaware, does hereby certify that the
following resolution providing for the amendment of the Resolution
establishing Series 3, Class B Preferred Stock was adopted by its Board of
Directors pursuant to authority expressly vested in it by the provisions of
the Certificate of Incorporation of ConAgra, Inc., as amended:
"RESOLVED, that the Board of Directors of ConAgra, Inc., a
Delaware corporation, hereby authorizes the issuance of 12,065 shares of
$50.00 par value, 7% cumulative, non-participating, convertible, voting
Preferred Stock of this Company, which stock shall be legally equivalent in
respect of priorities upon dissolution and payment of dividends to the
preferred stock of the company issued and outstanding, such stock to be known
as Series 3, Class B Preferred Stock and to be subject to the following
relative rights and preferences:
1. All or any portion of this preferred stock may be called
for redemption by the Company, at its option, at any time
after July 30, 1978 by paying therefor in cash the par
value thereof plus accrued dividends to the date of
payment, such sum being the redemption price. If less
than all of this preferred stock is called for redemption
(other than as a result of an attempted conversion thereof
by the holder thereof), then the stockholders whose stock
is to be so redeemed shall be selected by lot. Provided,
however, that no portion of the stock of any stockholder
shall be called for redemption, (without his consent)
unless all of this preferred stock owned by such
stockholder shall be simultaneously called for redemption
and such redemption would constitute a complete redemption
of all of the stock of the Company owned by such
stockholder within the meaning of Internal Revenue Code
Section 302(b)(3) (or the corresponding section of the
Internal Revenue Code then applicable) if such stockholder
were deemed to own no common stock of the Company. At
least thirty (30) days notice prior to the redemption
date, by prepaid certified mail, shall be given to the
holders of record of such preferred stock, addressed to
the last post office address shown on the records of the
Company. On the date fixed for redemption, and stated in
such notice, each holder of preferred shares shall
surrender such holder's certificate or certificates at the
place designated in such notice and thereupon be entitled
to receive payment of the redemption price. If notice of
redemption is duly given and if funds for the redemption
have been set aside prior to the redemption date,
notwithstanding the fact that a stockholder may have
failed to surrender the same, no dividend shall be payable
on such shares after the date fixed for redemption, and
all rights with respect to shares so called for redemption
shall forthwith, after such date, terminate, except only
the right of the holders to receive the redemption price
thereof, without interest.
2. This preferred stock may be converted at any time after
July 30, 1978, from time to time, in whole or in part, at
the option of the Stockholders, or any of them, into
common stock of the Company at the rate of three and one-
third (3 1/3) shares of common stock for one (1) share of
preferred stock plus one (1) share of common stock for
each $15.00 of accrued dividends on converted preferred
stock; provided, however, the Company, instead of
converting any such preferred stock so tendered into
common, may redeem said preferred stock at any time within
ninety (90) days after tender by paying the par value
thereof plus dividends accrued to the date of payment to
the offering stockholder; provided further, however, that
from September 23, 1980 until November 15, 1980, this
preferred stock may be converted, in whole or in part, at
the option of the Stockholders, or any of them, into
common stock of the Company at the rate of 1.5810 shares
of common stock for one (1) share of preferred stock plus
accrued dividends on converted preferred stock to and
including the date of issuance of such common stock. In
case the Company shall be recapitalized through the
subdivision or combination of its outstanding common stock
into a greater or smaller number of shares, then in each
such case the conversion ratio then in effect shall be
reduced or increased in the same proportion.
3. Without the consent of the holders of a two-thirds
majority of this series of preferred stock at the time
outstanding, given in person or by proxy, either in
writing or at a meeting of shareholders at which the
holders of this series of preferred stock shall vote
separately as a class, the Company shall not issue (and
has not heretofore issued) any shares of any other series
of preferred stock having priority over this series of
preferred stock as to payment of dividends (including
dividends in arrears or in default) or as to distribution
of assets upon liquidation, distribution or winding up of
the Company.
4. The Stockholders shall not be obligated to sell and the
Company shall not be obligated to convert or redeem any of
said preferred stock prior to July 30, 1978.
5. Each preferred stock certificate shall have stamped
thereon a legend describing this redemption agreement or
making reference to this provision of this contract."
IN WITNESS WHEREOF, said ConAgra, Inc., a Delaware corporation,
has caused this Amended Statement of Resolution to be signed by its President
and its Secretary this 24th day of September, 1980.
ConAgra, Inc.
A Delaware Corporation
/s/ C.M. HARPER
By_______________________
C.M. Harper, President
Attest:
/s/ J.W. GOODRICH
_____________________________
J.W. Goodrich, Secretary
AMENDED STATEMENT OF RESOLUTION ESTABLISHING SERIES 1
OF CLASS B PREFERRED SHARES OF
CONAGRA, INC.
Pursuant to Section 151(g) of the General Corporation Law of the
State of Delaware, ConAgra, Inc., a corporation organized and existing under
the laws of the State of Delaware, does hereby certify that the following
resolution providing for the amendment of the Resolution establishing Series
1, Class B Preferred Stock was adopted by its Board of Directors pursuant to
authority expressly vested in it by the provisions of the Certificate of
Incorporation of ConAgra, Inc., as amended:
"RESOLVED, that the Board of Directors of ConAgra, Inc., a
Delaware corporation, hereby authorizes the issuance of 37,862 shares of
$50.00 par value, 5% cumulative, non-participating, convertible, voting
Preferred Stock of this Company, such stock to be known as Series 1, Class B
Preferred Stock and shall be subject to the following relative rights and
preferences:
1. Priority of such shares upon dissolution of the issuer
shall be legally equivalent to all preferred shares of the
Company issued and outstanding at the date of issuance of
such Series 1, Class B Preferred Stock.
2. All or any part of such preferred stock may be called for
redemption by the Company, at its option, at any time
after March 1, 1974, by paying therefor in cash the par
value thereof plus accrued dividends to the date of
payment, such sum being the redemption price. At least
thirty (30) days notice prior to the redemption date, by
prepaid certified mail, shall be given to the holders of
record of such preferred stock, addressed to the last post
office address shown on the records of the Company. On
the date fixed for redemption, and stated in such notice,
each holder of preferred shares shall surrender such
holder's certificate or certificates at the place
designated in such notice and thereupon be entitled to
receive payment of the redemption price. If notice of
redemption is duly given and if funds for the redemption
have been set aside prior to the redemption date,
notwithstanding the fact that a stockholder may have
failed to surrender the same, no dividend shall be payable
on such shares after the date fixed for redemption, and
all rights with respect to shares so called for redemption
shall forthwith, after such date, terminate, except only
the right of the holders to receive the redemption price
thereof, without interest.
3. This preferred stock may be converted at any time after
March 1, 1974, from time to time, in whole or in part, at
the option of the holders, or any of them, into common
stock of the Company at the rate of three and one-third (3
1/3) shares of common stock for one (1) share of preferred
stock plus accrued dividends on converted preferred to and
including the date of issuance of such common stock;
provided, however, the Company, instead of converting any
such preferred stock so tendered into common, may redeem
said preferred stock at any time within ninety (90) days
after tender by paying the par value thereof plus
dividends accrued to the date of payment to the offering
stockholder; provided, further, however, that from
September 23, 1980 until November 15, 1980, this preferred
stock may be converted, in whole or in part, at the option
of the holders, or any of them, into common stock of the
Company at the rate of 1.5810 shares of common stock for
one (1) share of preferred stock plus accrued dividends on
converted preferred to and including the date of issuance
of such common stock.
4. The Stockholders shall not be obligated to sell and the
Company shall not be obligated to convert or redeem any of
said preferred stock prior to March 1, 1974.
5. Each preferred stock certificate shall have stamped
thereon a legend describing this redemption agreement or
making reference to this provision."
IN WITNESS WHEREOF, said ConAgra, Inc., a Delaware corporation,
has caused this Amended Statement of Resolution to be signed by its President
and its Secretary this 24th day of September, 1980.
ConAgra, Inc.
A Delaware Corporation
/s/ C.M. HARPER
By__________________________
C.M. Harper, President
Attest:
/s/ J.W. GOODRICH
____________________________
J.W. Goodrich, Secretary
STATEMENT OF RESOLUTION ESTABLISHING SERIES
OF CLASS C PREFERRED SHARES OF
CONAGRA, INC.
Pursuant to Section 151(g) of the General Corporation Law of the
State of Delaware, ConAgra, Inc., a corporation organized and existing under
the laws of the State of Delaware, does hereby certify that the following
resolution providing for the issuance of 70,000 shares of Series 2, Class C
Preferred Stock was adopted by its Board of Directors pursuant to authority
expressly vested in it by the provisions of the Certificate of Incorporation
of ConAgra, Inc., as amended:
"RESOLVED, that the Board of Directors of ConAgra, Inc., a
Delaware corporation (herein the "Company"), hereby authorizes the
issuance of 70,000 shares of $100 par value, 5% cumulative, non-
participating, non-voting Preferred Stock of this Company which
shall constitute the entirety of this Series, said shares to be
known as Series 2, Class C Preferred Stock and shall be subject to
the following relative rights and preferences:
(i) The Series 2, Class C Preferred Stock shall not have any
priority over any shares of Preferred Stock, Class B, as
to payment of dividends or as to the distribution of
assets upon liquidation, distribution or winding up of the
Company. The Series 2, Class C Preferred Stock shall rank
on a parity as to payment of dividends and the
distribution of assets upon liquidation, dissolution or
winding up with all Classes and Series of Preferred Stock
of the Company issued and outstanding on the date of
issuance of the Series 2, Class C Preferred Stock.
(ii) The preferential dividend rate of the Series 2, Class C
Preferred Stock shall be five per centum (5%) of the par
value thereof per share, per annum, payable on January 1,
April 1, July 1 and October 1 of each year. The dividends
upon the Series 2, Class C Preferred Stock shall be
cumulative from the date of issue thereof so that if
dividends for any past dividend period at the rate of five
per centum (5%) of the par value thereof per share, per
annum shall not have been paid thereon, or declared and a
sum sufficient for payment thereof set apart, the
deficiency shall be fully paid or set apart but without
interest, before any dividend shall be paid upon or set
apart for the common stock. Whenever the full dividend
upon the Preferred Stock for all past dividend periods
shall have been paid, and the full dividend thereon for
the then current dividend period shall have been paid or
declared and a sum sufficient for the payment thereof set
apart, dividends upon the common stock may be declared by
the board of directors out of the remainder of the assets
available therefor.
(iii) All or any part of the Series 2, Class C Preferred Stock
may be called for redemption by the Company at its option
at any time from its date of issue, by paying therefor in
cash the par value thereof plus accrued dividends to the
date of payment, such sum being the redemption price. At
least thirty (30) days' notice prior to the redemption
date, by prepaid certified mail, shall be given to the
holders of record of such Preferred Stock, addressed to
the last post office address shown on the records of the
Company. On the date fixed for redemption, and stated in
such notice, each holder of Preferred Stock shall
surrender such holder's certificate or certificates at the
place designated in such notice and thereupon be entitled
to receive payment of the redemption price. If notice of
redemption is duly given and if funds for the redemption
have been set aside prior to the redemption date,
notwithstanding the fact that a stockholder may have
failed to surrender the same, no dividend shall be payable
on such shares after the date fixed for redemption, and
all rights with respect to shares so called for redemption
shall forthwith, after such date, terminate, except only
the right of the holders to receive the redemption price
thereof, without interest.
(iv) All outstanding shares of Series 2, Class C Preferred
Stock shall be called for redemption by the Company on the
fifth anniversary of the date of first issuance thereof,
by paying therefor in cash the par value thereof plus
accrued dividends to the date of payment, such sum being
the redemption price. At least thirty (30) days' notice
prior to the redemption date, by prepaid certified mail,
shall be given to the holders of record of such Preferred
Stock, addressed to the last post office address shown on
the records of the Company. On the date fixed for
redemption, and stated in such notice, each holder of
Preferred Stock shall surrender such holder's certificate
or certificates at the place designated in such notice and
thereupon be entitled to receive payment of the redemption
price. If funds for the redemption have been set aside
prior to the redemption date, notwithstanding the fact
that a stockholder may have failed to surrender the same,
no dividend shall be payable on such shares after the date
fixed for redemption, and all rights with respect to
shares so called for redemption shall forthwith, after
such date, terminate, except only the right of the holders
to receive the redemption price thereof, without interest.
(v) Without the written consent of the holders of a two-thirds
(2/3) majority of this Series of Preferred Stock, at any
time outstanding, given in person or by proxy, either in
writing or at a meeting of shareholders at which the
holders of this Series of Preferred Stock shall vote
separately as a class, the Company shall not hereafter (a)
issue any shares of its Stock having priority over this
Series of Preferred Stock as to payment of dividends
(including dividends in arrears or in default) or as to
distribution of assets upon liquidation, dissolution or
winding up of the Company, or (b) amend the provisions set
forth in this Statement of Resolution establishing the
terms of this Series 2, Class C Preferred Stock.
(vi) In the event of any liquidation, dissolution or winding up
of the affairs of the Company, whether voluntary or
involuntary, the holders of the Preferred Stock shall be
entitled, before any assets of the Company shall be
distributed among or paid over to the holders of the
common stock, to be paid the par value thereof, together
with a sum of money equivalent to dividends at the rate of
five per centum (5%) per annum on the par value thereof
from the date of issuance to the date of payment thereof,
less the amount of dividends theretofore paid thereon, and
to no more. If, upon such liquidation, dissolution or
winding up, the assets of the Company distributable as
aforesaid among the holders of Preferred Stock shall be
insufficient to permit payment to them of said amount, the
entire assets shall be distributed ratably among the
holders of any Preferred Stock issued and outstanding and
having such priority.
IN WITNESS WHEREOF, ConAgra, Inc., a Delaware corporation, caused
this Statement of Resolution to be signed by its President and its Secretary
this 19th day of November, 1980.
ConAgra, Inc.
A Delaware Corporation
/s/ C. M. HARPER
By___________________________
C. M. Harper, President
Attest:
/s/ J. W. GOODRICH
______________________________________
J. W. Goodrich, Secretary
CERTIFICATE OF AMENDMENT
TO CERTIFICATE OF INCORPORATION
OF
CONAGRA, INC.
_______________________________
Pursuant to Section 242 of the General Corporation Law of the
State of Delaware, ConAgra, Inc., a corporation organized and existing under
the laws of the State of Delaware, does hereby certify:
FIRST: The Certificate of Incorporation for ConAgra, Inc. was
filed in the office of the Delaware Secretary of State on December 5, 1975.
SECOND: At a special meeting of the stockholders of the company,
held on November 13, 1980, an amendment to Article IV of the Certificate of
Incorporation was duly adopted in accordance with the provisions of Section
242 of the Delaware General Corporation Law; the amendment so adopted is set
forth on Exhibit "A" attached hereto and by this reference made a part hereof.
IN WITNESS WHEREOF, said ConAgra, Inc., a Delaware corporation,
has caused this Certificate to be signed by its President and its Secretary
this 14th day of November, 1980.
ConAgra, Inc., A Delaware Corporation
/s/ C.M. HARPER
By__________________________________
C.M. Harper, President
Attest:
/s/ J.W. GOODRICH
________________________________
J.W. Goodrich, Secretary
Exhibit A
ARTICLE IV
AUTHORIZED SHARES
The capital stock of said corporation shall be One Hundred
Thirty-Two Million Five Hundred Thousand Dollars ($132,500,000) divided into
twenty million (20,000,000) shares of Common Stock of a par value of Five
Dollars ($5.00) per share, one hundred fifty thousand (150,000) shares of
Class B Preferred Stock of a par value of Fifty Dollars ($50.00) per share,
and two hundred fifty thousand (250,000) shares of Class C Preferred Stock of
a par value of One Hundred Dollars ($100.00) per share.
The Class B Preferred Shares of this corporation may be
divided into and issued in series, and each series shall be so designated as
to distinguish the shares thereof from the shares of all other series and
classes. All shares of this Class shall be identical except as to the
following relative rights and preferences as to which there may be variations
between different series within Class B as determined by the Board of
Directors: (a) the rate of dividend; (b) whether the shares may be redeemed
and, if so, the redemption price and the terms and conditions of redemption;
(c) the amount payable upon shares in event of voluntary or involuntary
liquidation; (d) sinking fund provisions, if any, for the redemption or
purchase of shares; and (e) the terms and conditions, if any, on which shares
may be converted.
The Class C Preferred Stock of this corporation may be
divided into and issued in series, and each series shall be so designated as
to distinguish the shares thereof from the shares of all other series and
classes. The shares of this Class shall not have any priority over Class B
Preferred Stock as to payment of dividends or as to distribution of assets
upon liquidation, distribution or winding up of the corporation. All shares
of this Class shall be identical except as to the following relative rights
and preferences as to which there may be variations between different series
within Class C as determined by the Board of Directors: (a) whether such
shares shall be granted voting rights and, if so, to what extent and upon what
terms and conditions; (b) the rates and times at which, and the terms and
conditions on which, dividends on such shares shall be paid and any dividend
rights of cumulation; (c) whether such shares shall be granted conversion
rights and, if so, upon what terms and conditions; (d) whether the corporation
shall have the right to redeem such shares and, if so, upon what terms and
conditions; (e) the liquidation rights (if any) of such shares, including
whether such shares shall enjoy any liquidation preference over the common
stock; and (f) such other designations, preferences, relative rights and
limitations (if any) attaching to such shares.
No transfer of stock of this corporation shall be
operative until entered upon the books of the corporation.
STATEMENT OF RESOLUTIONS ESTABLISHING SERIES
OF CLASS D PREFERRED SHARES OF
CONAGRA, INC.
Pursuant to Section 151(g) of the General Corporation Law of the
State of Delaware, ConAgra, Inc., a corporation organized and existing under
the laws of the State of Delaware, does hereby certify that the following
resolution providing for the issuance of 707,507 shares of $2.50 Cumulative
Convertible Preferred Stock was adopted by its Board of Directors pursuant to
authority expressly vested in it by the provisions of the Certificate of
Incorporation of ConAgra, Inc., as amended:
RESOLVED, that the Board of Directors of ConAgra, Inc., a
Delaware corporation (herein the "Company"), hereby establishes a
series of 707,507 shares of Class D Preferred Stock, without par
value, of this Company which shall constitute the entirety of this
series, said shares to be known as $2.50 Cumulative Convertible
Preferred Stock, and shall be subject to the following relative
rights and preferences:
(i) The $2.50 Cumulative Convertible Preferred
Stock shall not have any priority over any shares of
Preferred Stock, Class B or Class C, as to payment of
dividends or as to the distribution of assets upon
liquidation, distribution or winding up of the Company.
The $2.50 Cumulative Convertible Preferred Stock shall
rank on a parity as to payment of dividends and the
distribution of assets upon liquidation, dissolution or
winding up with all Classes and Series of Preferred Stock
of the Company issued and outstanding on the date of
issuance of the $2.50 Cumulative Convertible Preferred
Stock.
(ii) The preferential dividend rate of the $2.50
Cumulative Convertible Preferred Stock shall be $2.50 per
share, per annum, payable on January 1, April 1, July 1,
and October 1 of each year. In the case of shares of
$2.50 Cumulative Convertible Preferred Stock issued as of
the Effective Time of the merger (the "Merger") of Peavey
Company into Garden Sub, Inc., a wholly-owned subsidiary
of the Company (as defined in the Agreement and Plan of
Reorganization, dated as of April 18, 1982, among the
Company, Peavey Company and Garden Sub, Inc.), such
dividends shall be payable on the first of such dates
which is at least 10 days after the Effective Time and
shall be cumulative from the later of (a) the quarterly
dividend payment date next preceding the date of issuance
of such shares and (b) the Effective Time. If the date of
issuance is a quarterly dividend payment date or is a date
between the record date for the determination of holders
of shares of $2.50 Cumulative Convertible Preferred Stock
entitled to receive a quarterly dividend and the date of
payment for such quarterly dividend, such dividends shall
be cumulative, for purposes of clause (a) of the preceding
sentence, from such quarterly dividend payment date. If
dividends for any past dividend period at the rate of
$2.50 per share, per annum shall not have been paid
thereon, or declared and a sum sufficient for payment
thereof set apart, the deficiency shall be fully paid or
set apart but without interest, before any dividend shall
be paid upon or set apart for the common stock. Whenever
the full dividend upon the Preferred Stock for all past
dividend periods shall have been paid, and the full
dividend thereon for the then current dividend period
shall have been paid or declared and a sum sufficient for
the payment thereof set apart, dividends upon the common
stock may be declared by the Board of Directors out of the
remainder of the assets available therefor.
(iii) All or any part of the $2.50 Cumulative
Convertible Preferred Stock may be called for redemption
by the Company at its option at any time or from time to
time on or after the day after the fifth anniversary of
the Effective Time, by paying therefor in cash the
following amounts, plus accrued and unpaid dividends to
the date fixed for redemption, such sum being the
redemption price:
If redeemed during the 12-month period beginning
the day after the anniversary of the Effective Time
in the year
1987. . . . . . . . . . . . . . . . . $26.25
1988. . . . . . . . . . . . . . . . . .26.00
1989. . . . . . . . . . . . . . . . . .25.75
1990. . . . . . . . . . . . . . . . . .25.50
1991. . . . . . . . . . . . . . . . . .25.25
1992 and thereafter . . . . . . . . . .25.00
At least thirty (30) days' notice prior to the
redemption date, by prepaid certified mail, shall
be given to the holders of record of such Preferred
Stock, addressed to the last post office address
shown on the records of the Company. On the date
fixed for redemption, and stated in such notice,
each holder of such Preferred Stock shall surrender
such holder's certificate or certificates at the
place designated in such notice and thereupon be
entitled to receive payment of the redemption
price. If notice of redemption is duly given and
if funds for the redemption have been set aside
prior to the redemption date, notwithstanding the
fact that a stockholder may have failed to
surrender the same, no dividend shall be payable on
such shares after the date fixed for redemption,
and all rights with respect to shares so called for
redemption shall forthwith, after such date,
terminate, except only the right of the holders to
receive the redemption price thereof, without
interest.
(iv) On or prior to the sixth anniversary of the
Effective Time (but in no event prior to the fifth
anniversary of the Effective Time), and on each
anniversary thereafter, (as long as shares remain
outstanding), the Company shall call for redemption a
number of shares of $2.50 Cumulative Convertible Preferred
Stock equal to 5%, and at the option of the Company up to
10%, of the aggregate number of shares issued and
outstanding immediately after the effective Time, by
paying therefor in cash $25.00 per share plus accrued and
unpaid dividends to the date of payment, such sum being
the redemption price. At least thirty (30) days' notice
prior to the redemption date, by prepaid certified mail,
shall be given to the holders of record of such Preferred
Stock, addressed to the last post office address shown on
the records of the Company. On the date fixed for
redemption, and stated in such notice, each holder of
Preferred Stock shall surrender such holder's certificate
or certificates at the place designated in such notice and
thereupon be entitled to receive payment of the redemption
price. If funds for the redemption have been set aside
prior to the redemption date, notwithstanding the fact
that a stockholder may have failed to surrender the same,
no dividend shall be payable on such shares after the date
fixed for redemption, and all rights with respect to
shares so called for redemption shall forthwith, after
such date, terminate, except only the right of the holders
to receive the redemption price thereof, without interest.
The Company may apply to its mandatory redemption
obligations any Convertible Preferred shares owned by it
and any such shares previously purchased, redeemed or
otherwise acquired by it which have not been previously
credited against the mandatory redemption obligation.
(v) Shares of $2.50 Convertible Preferred Stock
shall have the following voting rights:
(a) At any annual or special meeting of
stockholders at which holders of common stock of
the Company are entitled to vote, each holder of
shares of $2.50 Cumulative Convertible Preferred
Stock shall be entitled to cast one vote per share,
voting as a single class with common stock. The
same record date shall be used for all classes of
stock entitled to vote at any such meeting.
(b) Unless the vote or consent of the holders
of a greater number of shares shall then be
required by law, the consent of the holders of at
least 66-2/3% of the shares of $2.50 Cumulative
Convertible Preferred Stock at the time
outstanding, given in person or by proxy, either in
writing or by a vote at a meeting called for the
purpose at which the holders of shares of $2.50
Cumulative Convertible Preferred Stock shall vote
together as a separate class, shall be necessary
for authorizing, effecting or validating the
amendment, alteration or repeal of any of the
provisions of this resolution or of the Certificate
of Incorporation of the Company, as now or
hereafter amended, or of any certificate of
designation relating to any other series of
Preferred Stock, so as to affect adversely the
powers, preferences or rights of $2.50 Cumulative
Convertible Preferred Stock.
(vi) In the event of any liquidation, dissolution
or winding up of the affairs of the Company, whether
voluntary or involuntary, the holders of the $2.50
Cumulative Convertible Preferred Stock shall be entitled,
before any assets of the Company shall be distributed
among or paid over to the holders of the common stock, to
be paid $25.00 per share, together with a sum of money
equivalent to dividends at the rate of $2.50 per share per
annum from the date of issuance to the date of payment
thereof, less the amount of dividends theretofore paid
thereon, and to no more. If, upon such liquidation,
dissolution or winding up, the assets of the Company
distributable as aforesaid among the holders of Preferred
Stock shall be insufficient to permit payment to them of
said amount, the entire assets shall be distributed
ratably among the holders of any Preferred Stock issued
and outstanding and having such priority. For purposes of
liquidation, dissolution or winding up of the affairs of
the Company, whether voluntary or involuntary, the holders
of the $2.50 Cumulative Convertible Preferred Stock shall
rank prior to shares of other series of Preferred Stock
which are expressly made junior to this series as to
assets and, in the absence of such express provisions, on
a parity with shares of such other series.
(vii) The $2.50 Cumulative Convertible Preferred
Stock shall be convertible, at the option of the holders
thereof, at any time at the offices of the duly appointed
transfer agent for the $2.50 Cumulative Convertible
Preferred Stock, if any, or at such other office as the
Board of Directors of the Company may determine, into
fully paid and non-assessable shares (calculated to the
nearest 1/1000 of a share) of common stock of the Company
at the rate of 1.027 shares of common stock for each share
of $2.50 Cumulative Convertible Preferred Stock; provided
however, that in case of the redemption of any shares of
$2.50 Cumulative Convertible Preferred Stock, such right
of conversion shall cease and terminate, as to the shares
called for redemption, at the close of business on the
business day next preceding the date fixed for redemption,
unless default shall be made in the payment of the
redemption price. The rate at which shares of Common
Stock shall be deliverable in exchange for shares of $2.50
Cumulative Convertible Preferred Stock upon conversion
thereof is hereinafter referred to as the "conversion
rate". The conversion rate shall be subject to adjustment
from time to time in certain instances as hereinafter
provided, except that no adjustment shall be made unless
by reason of the happening of any one or more of the
events hereinafter specified, the conversion rate then in
effect shall be changed by 1% or more, but any adjustment
of less than 1% that would otherwise be required then to
be made shall be carried forward and shall be made at the
time of and together with any subsequent adjustment which,
together with any adjustment or adjustments so carried
forward, amounts to 1% or more, provided that such
adjustment shall be made in all events (regardless of
whether or not the amount thereof or the cumulative amount
thereof amounts to 1% or more) upon the happening of one
or more of the events specified in either subparagraph (a)
or subparagraph (c) of this paragraph (vii). Each
adjustment of the conversion rate shall be rounded to the
nearest four decimal places. Upon conversion the Company
shall make any payment due on account of dividends accrued
and unpaid on the $2.50 Cumulative Convertible Preferred
Stock surrendered for conversion to and including the
quarterly dividend payment date immediately preceding the
conversion date.
Before any holder of $2.50 Cumulative Convertible
Preferred Stock shall be entitled to convert the same into
common stock, he shall surrender the certificate or
certificates for such $2.50 Cumulative Convertible
Preferred Stock at the office appointed as aforesaid,
which certificate or certificates, if the Company shall so
request, shall be duly endorsed to the Company or in
blank, or accompanied by proper instruments of transfer to
the Company or in blank, and shall give written notice to
the Company that he elects so to convert such $2.50
Cumulative Convertible Preferred Stock, and shall state in
writing therein the name or names in which he wishes the
certificate or certificates for common Stock to be issued.
The Company will, as soon as practicable after such
surrender of certificates of $2.50 Cumulative Convertible
Preferred Stock accompanied by the written notice and the
statement above prescribed, issue and deliver at the
office appointed as aforesaid, to the person for whose
account such $2.50 Cumulative Convertible Preferred Stock
was so surrendered, or to his nominee or nominees,
certificates for the number of full shares of common stock
to which he shall be entitled as aforesaid, together with
a cash adjustment for any fraction of a share as
hereinafter stated, if not evenly convertible. Subject to
the following provisions of this paragraph, such
conversion shall be deemed to have been made as of the
date of such surrender of the $2.50 Cumulative Convertible
Preferred Stock to be converted, and the person or persons
entitled to receive the common stock issuable upon
conversion of such $2.50 Cumulative Convertible Preferred
Stock shall be treated for all purposes as the record
holder or holders of such Common Stock on such date. The
Company shall not be required to convert, and no surrender
of $2.50 Cumulative Convertible Preferred Stock shall be
effective for that purpose, while the stock transfer books
of the Company are closed for any purpose; but the
surrender of $2.50 Cumulative Convertible Preferred Stock
for conversion during any period while such books are so
closed shall become effective for conversion immediately
upon the reopening of such books, as if the conversion has
been made on the date such $2.50 Cumulative Convertible
Preferred Stock was surrendered and at the conversion rate
in effect at the date of such surrender.
The conversion rate for the $2.50 Cumulative
Convertible Preferred Stock shall be subject to adjustment
from time to time as follows:
(a) If the Company shall at any time pay a
dividend on common stock in common stock, subdivide its
outstanding shares of common stock into a larger number of
shares or combine its outstanding shares of common stock
into a smaller number of shares, the conversion rate in
effect immediately prior thereof shall be adjusted so that
each share of $2.50 Cumulative Convertible Preferred Stock
shall thereafter be convertible into the number of shares
of common stock which the holder of a share of $2.50
Cumulative Convertible Preferred Stock would have been
entitled to receive after the happening of any of the
events described above had such share been converted
immediately prior to the happening of such event. An
adjustment made pursuant to this subparagraph (a) shall
become effective retroactively to the record date in the
case of a dividend and shall become effective on the
effective date in the case of a subdivision or
combination.
(b) If the Company shall distribute to all holders
of shares of common stock any assets (other than any
dividend payable solely in cash), or any evidence of
indebtedness or other securities of the Corporation (other
than common stock), then in each such case the number of
shares of common stock into which each share of $2.50
Cumulative Convertible Preferred Stock shall thereafter be
convertible shall be determined by multiplying the number
of shares of common stock into which each share of $2.50
Cumulative Convertible Preferred Stock was theretofore
convertible on the day immediately preceding the record
date for the determination of the stockholders entitled to
receive such distribution by a fraction the numerator of
which shall be the average market price per share
(determined as provided below) of the common stock on such
record date and the denominator of which shall be such
average market price per share less the then fair market
value (as determined in a resolution adopted by the Board
of Directors of the Company, which shall be conclusive
evidence of such fair market value) of the portion of the
assets or evidence of indebtedness or securities so
distributed applicable to one share of Common Stock. Such
adjustment shall become effective retroactively
immediately after such record date.
For the purpose of any computation under this
subparagraph (b), the average market price per share of
common stock on any date shall be the average of the daily
closing prices for the 30 consecutive trading days
commencing 45 trading days before the date in question.
The closing price for each day shall be the last sales
price regular way or, in case no such sale takes place on
such day, the average of the closing bid and asked prices
regular way, in either case on the Composite Tape for New
York Stock Exchange issues.
(c) In case of any capital reorganization or any
reclassification of the capital stock of the Company or in
case of the consolidation or merger of the Company with
another corporation or in the case of any sale or
conveyance of all or substantially all of the property of
the Company, each share of $2.50 Cumulative Convertible
Preferred Stock shall thereafter be convertible into the
number of shares of stock or other securities or cash or
other property receivable upon such capital
reorganization, reclassification of capital stock,
consolidation, merger, sale or conveyance, as the case may
be, by a holder of the number of shares of common stock
into which such share of $2.50 Cumulative Convertible
Preferred Stock was convertible immediately prior to such
capital reorganization, reclassification of capital stock,
consolidation, merger, sale or conveyance; and, in any
case, appropriate adjustment (as determined by the Board
of Directors) shall be made in the application of the
provisions herein set forth with respect to rights and
interests thereafter of the holders of the $2.50
Cumulative Convertible Preferred Stock to the end that the
provisions set forth herein (including the specified
changes in and other adjustments of the conversion rate)
shall thereafter be applicable, as nearly as may be
reasonable, in relation to any shares of stock or other
securities or cash or other property thereafter
deliverable upon the conversion of the $2.50 Cumulative
Convertible Preferred Stock.
(d) The Company may make such increases in the
conversion rate, so as to increase the number of shares of
common stock into which the $2.50 Cumulative Convertible
Preferred Stock may be converted, in addition to those
required by subparagraphs (a), (b), and (c) above, as it
considers to be advisable in order that any event treated
for Federal income tax purposes as a dividend of stock or
stock rights shall not be taxable to the recipients.
(e) Whenever the conversion rate is adjusted as
herein provided, the Company shall forthwith file with any
transfer agent for the $2.50 Cumulative Convertible
Preferred Stock appointed as aforesaid a certificate,
signed by the President or one of the Vice Presidents of
the Company and by its Treasurer or an Assistant
Treasurer, stating the adjusted conversion rate determined
as provided in this paragraph (vii). Such certificate
shall show in detail the facts requiring such adjustment.
Whenever the conversion rate is adjusted, the Company will
forthwith cause a notice stating the adjustment and the
conversion rate as adjusted to be mailed to the respective
holders of $2.50 Cumulative Convertible Preferred Stock.
Such transfer agent shall be under no duty to make any
inquiry or investigation as to the statements contained in
any such certificate or as to the manner in which any
computation was made, but may accept such certificate as
conclusive evidence of the statements therein contained,
and such transfer agent shall be fully protected with
respect to any and all acts done or actions taken or
suffered by it in reliance thereon. No transfer agent in
its capacity as transfer agent shall be deemed to have any
knowledge with respect to any change of capital structure
of the Corporation unless and until it receives a notice
thereof pursuant to the provisions of this subparagraph
(e) and in default of any notice such transfer agent may
conclusively assume that there has been no such change.
The Company shall at all times reserve and keep
available out of its authorized and unissued common stock,
solely for the purpose of effecting the conversion of the
$2.50 Cumulative Convertible Preferred Stock, such number
of shares as shall from time to time be sufficient to
effect the conversion of all shares of $2.50 Cumulative
Convertible Preferred Stock from time to time outstanding.
The Company shall from time to time in accordance with the
laws of Delaware, increase the authorized amount of common
stock if at any time the number of shares of common stock
remaining unissued shall not be sufficient to permit the
conversion of all the then outstanding $2.50 Cumulative
Convertible Preferred Stock.
No fractions of shares of common stock are to be
issued upon conversion, but in lieu thereof the Company
will pay therefor in cash based on the closing price
(determined as provided in the last sentence of
subparagraph (b) above) of the common stock on the
Composite Tape for New York Stock Exchange issues on the
business day next preceding the day of conversion.
The Company will pay any and all issue and other
taxes (other than taxes based on income) that may be
payable in respect of any issue or delivery of shares of
common stock on conversion of $2.50 Cumulative Convertible
Preferred Stock pursuant hereto. The Corporation shall
not, however, be required to pay any tax which may be
payable in respect of any transfer involved in the issue
and delivery of common stock in a name other than that in
which the $2.50 Cumulative Convertible Preferred Stock so
converted was registered, and no such issue or delivery
shall be made unless and until the person requesting such
issue has paid to the Company the amount of any such tax,
or has established, to the satisfaction of the Company,
that such tax has been paid.
(viii) If the Company shall issue rights or
warrants to all holders of shares of common stock for the
purpose of entitling them to subscribe for or purchase
shares of common stock (for a period not exceeding 45 days
from the date of issuance), then in each such case the
holders of shares of the $2.50 Cumulative Convertible
Preferred Stock shall be permitted to subscribe for or
purchase shares of common stock on the same basis as
though such shares of $2.50 Cumulative Convertible
Preferred Stock had been converted into shares of common
stock immediately prior to such record date.
(ix) The stated value of the $2.50 Cumulative
Convertible Preferred Stock shall be $25.00 per share, and
the entire consideration received by the Company upon
issuance of the $2.50 Cumulative Convertible Preferred
Stock shall be capital.
(x) Any shares of $2.50 Cumulative Convertible
Preferred Stock redeemed, purchased or otherwise
reacquired, or surrendered for conversion shall be
cancelled and restored to the status of authorized but
unissued shares of Class D Preferred Stock of the
Corporation, but shall not thereafter be issued as shares
of $2.50 Cumulative Convertible Preferred Stock.
IN WITNESS WHEREOF, ConAgra, Inc., a Delaware corporation, caused
this Statement of Resolution to be signed by its President and its Secretary
on this 24th day of June, 1982.
CONAGRA, INC.
A Delaware Corporation
/s/ C. M. HARPER
By________________________
C. M. Harper
Chairman of the Board
Chief Executive Officer
Attest:
/s/ L. B. THOMAS
____________________________
L. B. Thomas, Secretary
CERTIFICATE OF AMENDMENT
TO CERTIFICATE OF INCORPORATION
OF
CONAGRA, INC.
Pursuant to Section 242 of the General Corporation Law of the
State of Delaware, ConAgra, Inc., a corporation organized and existing under
the laws of the State of Delaware, does hereby certify:
FIRST: The Certificate of Incorporation for ConAgra, Inc. was
filed in the office of the Delaware Secretary of State on December 5, 1975.
SECOND: At a special meeting of the stockholders of the company,
held on June 24, 1982, an amendment to Article IV of the Certificate of
Incorporation was duly adopted in accordance with the provisions of Section
242 of the Delaware General Corporation Law; the amendment so adopted is set
forth on Exhibit "A" attached hereto and by this reference made a part hereof.
IN WITNESS WHEREOF, said ConAgra, Inc., a Delaware corporation,
has caused this Certificate to be signed by its President and its Secretary
this 24th day of June, 1982.
ConAgra, Inc., A Delaware Corporation
/s/ C.M. HARPER
By__________________________________
C.M. Harper
Chairman of the Board
Chief Executive Officer
Attest:
/s/ L.B. THOMAS
________________________________
L. B. Thomas, Secretary
Exhibit A
ARTICLE IV
AUTHORIZED SHARES
The total number of shares which this corporation shall have
authority to issue is fifty-one million, five hundred thousand (51,500,000)
shares, divided into fifty million (50,000,000) shares of Common Stock of a
par value of Five Dollars ($5.00) per share, one hundred fifty thousand
(150,000) shares of Class B Preferred Stock of a par value of Fifty Dollars
($50.00) per share, two hundred fifty thousand (250,000) shares of Class C
Preferred Stock of a par value of One Hundred Dollars ($100.00) per share, and
One Million One Hundred Thousand (1,100,000) shares of Class D Preferred Stock
without par value.
The Class B Preferred Stock of this corporation may be divided
into and issued in series, and each series shall be so designated as to
distinguish the shares thereof from the shares of all other series and
classes. All shares of this Class shall be identical except as to the
following relative rights and preferences as to which there may be variations
between different series within Class B as determined by the Board of
Directors: (a) the rate of dividend; (b) whether the shares may be redeemed
and, if so, the redemption price and the terms and conditions of redemption;
(c) the amount payable upon shares in event of voluntary or involuntary
liquidation; (d) sinking fund provisions, if any, for the redemption or
purchase of shares; and (e) the terms and conditions, if any, on which shares
may be converted.
The Class C Preferred Stock of this corporation may be divided
into and issued in series, and each series shall be so designated as to
distinguish the shares thereof from the shares of all other series and
classes. The shares of this Class shall not have any priority over Class B
Preferred Stock as to payment of dividends or as to distribution of assets
upon liquidation, distribution or winding up of the corporation. All shares
of this Class shall be identical except as to the following relative rights
and preferences as to which there may be variations between different series
within Class C as determined by the Board of Directors: (a) whether such
shares shall be granted voting rights and, if so, to what extent and upon what
terms and conditions; (b) the rates and times at which, and the terms and
conditions on which, dividends on such shares shall be paid and any dividend
rights of cumulation; (c) whether such shares shall be granted conversion
rights and, if so, upon what terms and conditions; (d) whether the corporation
shall have the right to redeem such shares and, if so, upon what terms and
conditions; (e) the liquidation rights (if any) of such shares, including
whether such shares shall enjoy any liquidation preference over the common
stock; and (f) such other designations, preferences, relative rights and
limitations (if any) attaching to such shares.
The Class D Preferred Stock of this corporation may be divided
into and issued in series, and each series shall be so designated as to
distinguish the shares thereof from the shares of all other series and
classes. The shares of this Class shall not have any priority over Class B
Preferred Stock or Class C Preferred Stock as to payment of dividends or as to
distribution of assets upon liquidation, distribution or winding up of the
corporation. All shares of this Class shall be identical except as to the
following relative right and preferences as to which there may be variations
between different series within Class D as determined by the Board of
Directors: (a) whether such shares shall be granted voting rights and, if so,
to what extent and upon what terms and conditions; (b) the rates and times at
which, and the terms and conditions on which, dividends on such shares shall
be paid and any dividend rights of cumulation; (c) whether such shares shall
be granted conversion rights and, if so, upon what terms and conditions;
(d) whether the corporation shall have the right to redeem such shares and, if
so, upon what terms and conditions; (e) the liquidation rights (if any) of
such shares, including whether such shares shall enjoy any liquidation
preference over the common stock; and (f) such other designations,
preferences, relative rights and limitations (if any) attaching to such
shares.
No transfer of stock of this corporation shall be operative until
entered upon the books of the corporation.
CERTIFICATE OF AMENDMENT
TO CERTIFICATE OF INCORPORATION
OF
CONAGRA, INC.
Pursuant to Section 242 of the General Corporation Law of
the State of Delaware, ConAgra, Inc., a corporation organized and existing
under the laws of the State of Delaware, does hereby certify:
FIRST: The Certificate of Incorporation for ConAgra, Inc.
was filed in the office of the Delaware Secretary of State on December 5,
1975.
SECOND: At the annual meeting of the stockholders of the
company, held on September 14, 1982, an amendment to Article VII., Paragraph
(a) of the Certificate of Incorporation was duly adopted in accordance with
the provisions of Section 242 of the Delaware General Corporation Law; the
amendment so adopted is set forth on Exhibit "A" attached hereto and by this
reference made a part hereof.
IN WITNESS WHEREOF, said ConAgra, Inc., a Delaware
corporation, has caused this Certificate to be signed by its Chairman of the
Board and its Secretary this 14th day of September, 1982.
ConAgra, Inc., A Delaware Corporation
/s/ C.M. HARPER
By__________________________________
C.M. Harper
Chairman of the Board
Chief Executive Officer
Attest:
/s/ L.B. THOMAS
________________________________
L. B. Thomas, Secretary
Exhibit "A"
ARTICLE VII, PARAGRAPH (a)
The affairs of this Corporation shall be conducted by a Board of
Directors. The number of directors of the Corporation, not less than eight
nor more than fourteen, shall be fixed from time to time by the By-Laws.
Commencing with the annual election of directors by the stockholders of the
Corporation in 1977, the directors of the Corporation shall be divided into
three classes: Class I, Class II and Class III, each such class, as nearly as
possible, to have the same number of directors. The term of office of the
initial Class I directors shall expire at the annual election of directors by
the stockholders of the Corporation in 1978, the term of office of the initial
Class II directors shall expire at the annual election of directors by the
stockholders of the Corporation in 1979, and the term of office of the initial
Class III directors shall expire at the annual election of directors by the
stockholders of the Corporation in 1980, or in each case thereafter when their
respective successors are elected by the stockholders and qualify. At each
annual election of directors by the stockholders of the Corporation held after
1977, the directors chosen to succeed those whose terms are then expired shall
be identified as being of the same class as the directors they succeed and
shall be elected by the stockholders of the corporation for a term expiring at
the third succeeding annual election of directors, or thereafter when their
respective successors in each case are elected by the stockholders and
qualify.
The provisions set forth in Article VII(a) may not be repealed or
amended in any respect unless such repeal or amendment is approved by (i) the
affirmative vote of the holders of not less than 80% of the total voting power
of all outstanding shares of stock of this Corporation, or (ii) the
affirmative vote of not less than 75% of the members of the Board of Directors
of this Corporation and the affirmative vote of the holders of a majority of
the total voting power of all outstanding shares of stock of this Corporation.
STATEMENT OF RESOLUTIONS ESTABLISHING
SERIES 3, CLASS C, PREFERRED STOCK
OF CONAGRA, INC.
Pursuant to Section 151(g) of the General Corporation Law of the State
of Delaware, ConAgra, Inc., a corporation organized and existing under the
laws of the State of Delaware, does hereby certify that the following
resolution authorizing the issuance of 23,500 shares of Series 3, Class C,
Preferred Stock was adopted by its Board of Directors pursuant to authority
expressly vested in it by the provisions of the Certificate of Incorporation
of ConAgra, Inc., as amended:
"RESOLVED, that the Board of Directors of ConAgra, Inc., a Delaware
corporation, hereby authorizes the issuance of 23,500 shares of $100 par
value, 4% Cumulative, Nonparticipating, Convertible, Voting Preferred
Stock of this Company, said Preferred Stock to be known as Series 3,
Class C, Preferred Stock and shall be subject to the following relative
rights and preferences:
(i) The Series 3, Class C, Preferred Stock shall not have any
priority over any shares of Preferred Stock, Class B, other
Series of Class C, or Class D, as to payment of dividends or as
to the distribution of assets upon liquidation, distribution,
or winding up of the Company.
(ii) The Series 3, Class C, Preferred Stock shall rank on a parity
as to payment of dividends and the distribution of assets upon
liquidation, dissolution or winding up with all Classes and
Series of Preferred Stock of the company issued and outstanding
on the date of issuance of the Series 3, Class C, Preferred
Stock.
(iii) The preferential dividend rate of the Series 3, Class C,
Preferred Stock shall be four percent (4%) of the par value
thereof per share per annum, commencing from the date of issue
thereof, payable on January 1, April 1, July 1, and October 1
of each year. The dividends upon the Series 3, Class C,
Preferred Stock shall be cumulative from the date of issue
thereof so that if dividends for any past dividend period at
the rate of four percent (4%) of the par value thereof per
share per annum shall not have been paid thereon, or declared,
the deficiency shall be fully paid or set apart, but without
interest, before any dividend shall be paid upon or set apart
for the Common Stock. Whenever the full dividend upon the
Series 3, Class C, Preferred Stock for all past dividend
periods shall have been paid, and the full dividend thereon for
the then current period shall have been paid or declared and
the sums sufficient for the payment thereof set apart,
dividends upon the common stock of the Company may be declared
by the Board of Directors out of the remainder of the assets
available therefor.
(iv) Subject to the provisions of paragraph (vi) hereof, the Series
3, Class C, Preferred Stock may be converted at any time
beginning on or after December 15, 1985, at the option of the
holders, or any of them, into common stock of the Company at
the rate of four (4) shares of common stock for one (1) share
of Preferred Stock (rounded down to the nearest whole share)
plus cash for accrued dividends on converted preferred to and
including the date of issuance of such common stock. In case
the Company shall be recapitalized through the subdivision or
combination of its outstanding common stock into a greater or
smaller number of shares, or shall issue any stock dividends or
warrants to its stockholders, then, in each such case, the
conversion ratio in effect shall be reduced or increased in the
same proportion. Before any holder of the Series 3, Class C,
Preferred Stock shall be entitled to convert the same into
Common Stock, such holder shall surrender the certificate or
certificates for such Series 3, Class C, Preferred Stock to the
Company which certificates shall be duly endorsed to the
Company or in blank, or accompanied by proper instruments of
transfer to the Company or in blank, and shall give written
notice to the Company that such holder elects to convert all
such Preferred Stock into Common Stock of the Company. The
Company will, as soon as practicable after such surrender of
the certificates accompanied by written notice, issue and
deliver to the former holder at the place designated in such
notice, certificates for the number of full shares of Common
Stock to which such holder shall be entitled as aforesaid,
together with cash for accrued dividends on converted Preferred
Stock to and including the date of issuance of such Common
Stock, provided, however, that at any time after ten (10) years
from its date of issue the Company may call for redemption all
or any part of this Preferred Stock, which has not therefore
been converted, in the manner as set forth below at paragraph
(v). Any election to convert such Series 3, Class C, Preferred
Stock into common stock of the Company shall be in writing and
shall also be deemed to be an election by such holder to
convert all such convertible preferred stock owned by such
holder to common stock of the Company and, in no event, shall
any such conversion result in a holder holding both preferred
(of any class or series) and common stock of the Company.
(v) All or any part of the Series 3, Class C, Preferred Stock may
be called for redemption by the Company, at its option, at any
time after ten (10) years from its date of issue, by paying
therefor in cash the par value thereof plus accrued dividends
to the date of payment, such sum being the redemption price.
At least thirty (30) days' notice prior to the redemption date,
by prepaid certified mail, shall be given to the holders of
record of this Series 3, Class C, Preferred Stock, addressed to
the last post office address shown on the records of the
Company. On the date fixed for redemption, and stated in such
notice, each holder shall surrender such holder's certificate
or certificates at the place designated in such notice and
thereupon be entitled to receive payment of the redemption
price. If notice of redemption is duly given and if funds for
the redemption have been set aside prior to the redemption
date, notwithstanding the fact that a stockholder may have
failed to surrender the same, no dividend shall be payable on
this Series 3, Class C, Preferred Stock after the date fixed
for redemption, and all rights with respect to this preferred
stock so called for redemption shall forthwith, after such
date, terminate, except only the right of the holders to
receive the redemption price thereof, without interest.
(vi) In addition to any other call or redemption rights of the
Company hereinbefore described, the Company shall have the
right (but not the obligation) to redeem any shares of Series
3, Class C, Preferred Stock issued on or after May 31, 1985 and
held by any holder of such Preferred Stock who has elected to
convert such Preferred Stock into common stock of the Company;
such right of redemption shall be subject to the following
provision:
(A) All or any part of such Series 3, Class C, Preferred
Stock issued on or after May 31, 1985 may be called
for redemption by the Company at its option, in lieu
of conversion into shares of common stock, by paying
for such Preferred Stock in cash the par value thereof
plus accrued dividends to the date of payment, such
sum being the redemption price. The Company may
exercise this option to redeem such preferred stock by
giving written notice to the holder or holders thereof
within thirty (30) days from the date the Company
received such holder's or holders' written election to
convert to common stock of the Company. Such written
notice shall be sent by prepaid certified mail and
addressed to the electing holder(s) of record of such
preferred stock at the last post office address shown
on the Company's records. Such notice shall further
fix the redemption date, which shall not be later than
sixty (60) days from the date of such notice. On the
date fixed for redemption, each holder of such shares
of Series 3, Class C, Preferred Stock shall surrender
such holder's certificate or certificates at the place
designated in such notice and thereupon be entitled to
receive payment of the redemption price. If notice of
redemption is duly given and if funds for redemption
have been set aside prior to the redemption date,
notwithstanding the fact that a stockholder may have
failed to surrender the same, no dividend shall be
payable on such preferred stock after the date fixed
for redemption, and all rights with respect to
Preferred Stock so called for redemption shall
forthwith, after such date, terminate, except only the
right of the holders to receive the redemption price
thereof, without interest.
(vii) Without the written consent of the holders of a two-thirds
(2/3) majority of this Series 3, Class C, Preferred Stock, at
any time outstanding, given in person or by proxy, either in
writing or at a meeting of the stockholders at which the
holders of such preferred stock shall vote separately as a
class, the Company shall not hereafter (a) issue any shares of
its stock having priority over this Series 3, Class C,
Preferred Stock as to payment of dividends (including dividends
in arrears or in default) or as to distribution of assets upon
liquidation, dissolution or winding up of the Company, or (b)
amend the provisions set forth in this Statement of Resolution
establishing the terms of this Series 3, Class C, Preferred
Stock.
(viii) Voting in conjunction with the holders of the common stock and
the holders of other classes or series of preferred stock
entitled to vote, the holders of the Series 3, Class C,
Preferred Stock shall have the right to vote or consent at all
meetings of the stockholders of the Company, or otherwise, in
respect of any matter upon which the vote or the consent in
lieu of voting of the stockholders is required, including,
without limitation, the election of directors, provided,
however, that the holders of this preferred stock shall have no
rights voting as a class except as otherwise permitted at
paragraph (vii) set forth immediately above. Each holder of
this preferred stock shall have one vote in respect of each
share of such stock held by him.
(ix) Each Series 3, Class C, Preferred Stock certificate shall have
stamped thereon a legend describing this redemption agreement
or making reference to this provision.
(x) In the event of any liquidation, dissolution or winding up of
the affairs of the Company, whether voluntary or involuntary,
the holders of the Series 3, Class C, Preferred Stock shall be
entitled, before any assets of the Company shall be distributed
among or paid over to the holders of the common stock, to be
paid the par value thereof, together with a sum of money
equivalent to dividends at the rate of four per centum (4%) per
annum on the par value thereof from the date of issuance to the
date of payment thereof, less the amount of dividends
theretofore paid among the holders of this preferred stock
shall be insufficient to permit payment to them of said amount,
the entire assets shall be distributed ratably among the
holders of any preferred stock of the Company issued and
outstanding and having such priority.
IN WITNESS WHEREOF, ConAgra, Inc., a Delaware corporation, caused this
Statement of Resolution to be signed by its Chairman of the Board and Chief
Executive Officer and its Secretary on this 15th day of November, 1982.
CONAGRA, INC.,
A Delaware Corporation
/s/ C. M. HARPER
By____________________________
(Corporate Seal) C.M. Harper
Chairman of the Board and
Chief Executive Officer
Attest:
/s/ L. B. THOMAS
____________________________
L.B. Thomas, Secretary
CERTIFICATE OF INCREASE IN THE NUMBER
OF ISSUED SHARES OF CLASS D PREFERRED
SHARES OF CONAGRA, INC.
Pursuant to Section 151(g) of the General Corporation Law of the State
of Delaware, ConAgra, Inc., a corporation organized and existing under the
laws of the State of Delaware, does hereby certify that the following
resolution providing for the issuance of an additional 1,862 shares of Class D
Preferred Stock known as $2.50 Cumulative Convertible Preferred Stock was
adopted by its Board of Directors pursuant to authority expressly vested in it
by the provisions of the Certificate of Incorporation of ConAgra, Inc., as
amended:
WHEREAS, the Board of Directors of ConAgra, Inc., a
Delaware corporation (herein the "Company"), has heretofore
established a series of 707,507 shares of Class D Preferred Stock,
without par value, of this Company which constitutes the entirety
of such series, said shares known as $2.50 Cumulative Convertible
Preferred Stock;
BE IT RESOLVED, that the Board of Directors of the
Company hereby authorizes and directs the issuance of an
additional 1,862 shares of $2.50 Cumulative Convertible Preferred
Stock which shares shall be subject to the same rights and
preferences as the originally issued shares of $2.50 Cumulative
Convertible Preferred Stock.
IN WITNESS WHEREOF, ConAgra, Inc., a Delaware corporation, caused this
Certificate of Increase to be signed by its Chairman of the Board and Chief
Executive Officer and by its Secretary on this 29th day of September, 1983.
CONAGRA, INC.
A Delaware Corporation
/s/ C. M. HARPER
By____________________________
C. M. Harper
Chairman of the Board and
Chief Executive Officer
ATTEST:
/s/ L. B. Thomas
___________________________
L. B. THOMAS
Secretary
CERTIFICATE OF CHANGE OF ADDRESS OF
REGISTERED OFFICE AND OF REGISTERED AGENT
PURSUANT TO SECTION 134 OF TITLE 8 OF THE DELAWARE CODE
To: DEPARTMENT OF STATE
Division of Corporations
Townsend Building
Federal Street
Dover, Delaware 19903
Pursuant to the provisions of Section 134 of Title 8 of the Delaware
Code, the undersigned Agent for service of process, in order to change the
address of the registered office of the corporations for which it is
registered agent, hereby certifies that:
1. The name of the agent is:The Corporation Trust Company
2. The address of the old registered office was:
100 West Tenth Street
Wilmington, Delaware 19801
3. The address to which the registered office is to be changed is:
Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
The new address will be effective on July 30, 1984.
4. The names of the corporations represented by said agent are set
forth on the list annexed to this certificate and made a part
hereof by reference.
IN WITNESS WHEREOF, said agent has caused this certificate
to be signed on its behalf by its Vice-President and Assistant
Secretary this 25th day of July, 1984.
THE CORPORATION TRUST COMPANY
______________________________________
(Name of Registered Agent)
/s/ VIRGINIA COLVELL
By____________________________________
(Vice-President)
ATTEST:
/s/ MARY G.
______________________________
(Assistant Secretary)
STATE OF DELAWARE - DIVISION OF CORPORATIONS
CHANGE OF ADDRESS FILING FOR
CORPORATION TRUST AS OF JULY 27, 19984
DOMESTIC
0818610TKM (U.S.A.) HOLDINGS INC. 11/24/1975 D DE
0818621WILLBROS ENERGY SERVICES COMPANY 11/24/1975 D DE
0818659HEBERER BROS. INC. 11/25/1975 D DE
08186601001001 INC. 11/25/1975 D DE
0818664NTA NATIONAL INC. 11/25/1975 D DE
0818666THE MARMON GROUP, INC. 11/25/1975 D DE
0818668THE NATIONAL SUGAR REFINING COMPANY 11/25/1975 D DE
0818669TENNECO AUTOMOTIVE EUROPE, INC. 11/25/1975 D DE
0818678CRALEX, INC. 11/25/1975 D DE
0818693YORK BIN CO 11/26/1975 D DE
0818694HOERR EXCAVATING, INC. 11/26/1975 D DE
0818695ORLANDO VALENTE INTERIORS, LTD. 11/26/1975 D DE
0818696OMAR INDUSTRIES, LTD. 11/26/1975 D DE
0818699OLNEY CARE CENTER, INC. 11/26/1975 D DE
0818701DATAMEDIA EXPORT CORPORATION 11/26/1975 D DE
0818702AMERICAN HARDWARE MANUFACTURERS ASSOCIATION11/26/1975 D DE
0818712MASTER FOODS, INC. 11/26/1975 D DE
0818714SYSKA & HENNESSY INTERNATIONAL, INC. 11/26/1975 D DE
0818716PECTEN MIDDLE EAST SERVICES COMPANY 11/26/1975 D DE
0818717JML CORPORATION 11/26/1975 D DE
0818734THE ALLEN GROUP PUERTO RICO INC. 12/01/1975 D DE
0818737TECHNOLOGY WORLD, INC. 12/01/1975 D DE
0818739NATIONAL JET CORPORATION 12/01/1975 D DE
0818753BELL OPERATIONS CORPORATION 12/01/1975 D DE
0818760FOOD RESOURCES INTERNATIONAL INC. 12/01/1975 D DE
0818762PRESTIGE GIFTS CORPORATION 12/01/1975 D DE
0818789COOPER INTERNATIONAL RUBBER CORP. 12/01/1975 D DE
0818790J. F. HILLEBRAND CORPORATION OF AMERICA 12/01/1975 D DE
0818828INDEPENDENCE COAL CORPORATION 12/02/1975 D DE
0818829CHARTER SPORTS, INC. 12/02/1975 D DE
0818835WALLANT INTERNATIONAL TRADE, INC. 12/02/1975 D DE
0818861HARRINGTON'S AUTOMOTIVE EMPORIUM, LTD. 12/03/1975 D DE
0818877FIRST BOSTON, INC. 12/03/1975 D DE
0818879NEWMET, INC. 12/03/1975 D DE
0818881THIRD STEVENSON PROPERTIES CORP. 12/03/1975 D DE
0818882BORG-WARNER LEASING CORPORATION 12/03/1975 D DE
0818884GIT INDUSTRIES, INC. 12/03/1975 D DE
0818896FIRST PACIFIC BROADCASTING, INC. 12/04/1975 D DE
0818911LEIBSON, LIGHTLE AND ASSOCIATES, INC. 12/04/1975 D DE
0818914TRIGON CORPORATION 12/04/1975 D DE
0818915CITY COACH LINES, INC. 12/04/1975 D DE
0818919DOMINO INDUSTRIES, INC. 12/04/1975 D DE
0818932CRESTON CORPORATION 12/04/1975 D DE
0818933WELLMAN LIQUIDATING CORPORATION 12/04/1975 D DE
0818939CARIBBEAN RESTAURANTS, INC. 12/04/1975 D DE
0818944CONAGRA, INC. 12/05/1975 D DE
0818956MICHAEL MINDLIN AND ASSOCIATES, INC. 12/05/1975 D DE
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
CONAGRA, INC.
ConAgra, Inc., a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware, does hereby
certify:
FIRST: That at a meeting of the Board of Directors of ConAgra,
Inc., resolutions were duly adopted setting forth a proposed
amendment to the Certificate of Incorporation of said
corporation declaring said amendment to be advisable and
calling a meeting of the stockholders of said corporation
for consideration thereof. The resolution setting forth the
proposed amendment is as follows:
"RESOLVED, that the Certificate of Incorporation of
this corporation be amended by changing Article IV
thereof and adding new Articles XVII and XVIII to
provide as set forth on Exhibit "A" attached hereto
and made a part hereof."
SECOND: That thereafter, pursuant to resolution of its Board of
Directors, an annual meeting of the shareholders of said
corporation was duly called and held, upon notice in
accordance with Section 222 of the General Corporation Law
of the State of Delaware at which meeting the necessary
number of shares as required by statute were voted in favor
of the amendment.
THIRD: That said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of
the State of Delaware.
IN WITNESS WHEREOF, said ConAgra, Inc., has caused this Certificate to
be signed by L. B. Thomas, its Vice President, and attested by Dorothy Young,
its Assistant Secretary, this 19th day of September, 1985.
CONAGRA, INC.
/s/ L. B. THOMAS
By____________________
L. B. THOMAS, Vice President
Attest:
/s/ DOROTHY YOUNG
By________________________________
DOROTHY YOUNG, Assistant
Secretary
Exhibit "A"
ARTICLE IV
AUTHORIZED SHARES
The total number of shares which this corporation shall have authority
to issue is one hundred four million (104,000,000) shares, divided into one
hundred million (100,000,000) shares of Common Stock of a par value of Five
Dollars ($5.00) per share; one hundred fifty thousand (150,000) shares of
Class B Preferred Stock of a par value of Fifty Dollars ($50.00) per share;
two hundred fifty thousand (250,000) shares of Class C Preferred Stock of a
par value of One Hundred Dollars ($100.00) per share; one million one hundred
thousand (1,100,000) shares of Class D Preferred Stock without par value; and
two million five hundred thousand (2,500,000) shares of Class E Preferred
Stock, without par value.
The Class B Preferred Stock of this corporation may be divided into and
issued in series, and each series shall be so designated as to distinguish the
shares thereof from the shares of all other series and classes. All shares of
this Class shall be identical except as to the following relative rights and
preferences as to which there may be variations between different series
within Class B as determined by the Board of Directors: (a) the rate of
dividend; (b) whether the shares may be redeemed and, if so, the redemption
price and the terms and conditions of redemption; (c) the amount payable upon
shares in event of voluntary or involuntary liquidation; (d) sinking fund
provisions, if any, for the redemption or purchase of shares; and (e) the
terms and conditions, if any, on which shares may be converted.
The Class C Preferred Stock of this corporation may be divided into and
issued in series, and each series shall be so designated as to distinguish the
shares thereof from the shares of all other series and classes. The shares of
this Class shall not have any priority over Class B Preferred Stock as to
payment of dividends or as to distribution of assets upon liquidation,
distribution or winding up of the corporation. All shares of this Class shall
be identical except as to the following relative rights and preferences as to
which there may be variations between different series within Class C as
determined by the Board of Directors: (a) whether such shares shall be
granted voting rights and, if so, to what extent and upon what terms and
conditions; (b) the rates and times at which, and the terms and conditions on
which, dividends on such shares shall be paid and any dividend rights of
cumulation; (c) whether such shares shall be granted conversion rights and, if
so, upon what terms and conditions; (d) whether the corporation shall have the
right to redeem such shares and, if so, upon what terms and conditions;
(e) the liquidation rights (if any) of such shares, including whether such
shares shall enjoy any liquidation preference over the common stock; and
(f) such other designations, preferences, relative rights and limitations (if
any) attaching to such shares.
The Class D Preferred Stock of this corporation may be divided into and
issued in series, and each series shall be so designated as to distinguish the
shares thereof from the shares of all other series and classes. The shares of
this Class shall not have any priority over Class B Preferred Stock or Class C
Preferred Stock as to the payment of dividends or as to the distribution of
assets upon liquidation, distribution or winding up of the corporation. All
shares of this Class shall be identical except as to the following relative
rights and preferences as to which there may be variations between different
series within Class D as determined by the Board of Directors: (a) whether
such shares shall be granted voting rights and, if so, to what extent and upon
what terms and conditions; (b) the rates and times at which, and the terms and
conditions on which, dividends on such shares shall be paid and any dividend
rights of cumulation; (c) whether such shares shall be granted conversion
rights and, if so, upon what terms and conditions; (d) whether the corporation
shall have the right to redeem such shares and, if so, upon what terms and
conditions; (e) the liquidation rights (if any) of such shares, including
whether such shares shall enjoy any liquidation preference over the common
stock; and (f) such other designations, preferences, relative rights and
limitations (if any) attaching to such shares.
The Class E Preferred Stock of this corporation may be divided into and
issued in series, and each series shall be so designated as to distinguish the
shares thereof from the shares of all other series and classes. The shares of
this Class shall not have any priority over Class B Preferred Stock, Class C
Preferred Stock or Class D Preferred Stock as to the payment of dividends or
as to the distribution of assets upon liquidation, distribution or winding up
of the corporation. All shares of this Class shall be identical except as to
the following relative rights and preferences as to which there may be
variations between different series within Class E as determined by the Board
of Directors: (a) whether such shares shall be granted voting rights and, if
so, to what extent and upon what terms and conditions; (b) the rates and times
at which, and the terms and conditions on which, dividends on such shares
shall be paid and any dividend rights of cumulation; (c) whether such shares
shall be granted conversion rights and, if so, upon what terms and conditions;
(d) whether the corporation shall have the right to redeem such shares and, if
so, upon what terms and conditions; (e) the liquidation rights (if any) of
such shares, including whether such shares shall enjoy any liquidation
preference over the common stock; and (f) such other designations,
preferences, relative rights and limitations (if any) attaching to such
shares.
No transfer of stock of this corporation shall be operative until
entered upon the books of the corporation.
ARTICLE XVII
Annual and Special Meeting of Stockholders
Any action required or permitted to be taken by the holders of the
capital stock of the Company must be effected at a duly called annual or
special meeting of such holders and may not be effected by any consent in
writing of such holders.
ARTICLE XVIII
Prohibition of "Greenmail"
A. Any purchase or other acquisition, directly or indirectly, in
one or more transactions, by the Company or any Subsidiary (as hereinafter
defined) of the Company of any shares of Voting Stock (as hereinafter defined)
or any Voting Stock Right (as hereinafter defined) known by the Company to be
beneficially owned by any Interested Stockholder (as hereinafter defined) who
has purchased or otherwise acquired any such Voting Stock or Voting Stock
Right within two years prior to the date of such purchase or other acquisition
from the Company or Subsidiary shall, except as hereinafter expressly
provided, require the affirmative vote of at least a majority of all votes
entitled to be cast by the holders of the Voting Stock (excluding Voting Stock
held by an Interested Stockholder) voting together as a single class. Such
affirmative vote shall be required notwithstanding the fact that no vote may
be required, or that a lesser percentage may be specified, by law or any
agreement with any national securities exchange, or otherwise, but no such
affirmative vote shall be required with respect to any purchase or other
acquisition by the Company or any of its Subsidiaries of Voting Stock or
Voting Stock Rights purchased at or below Fair Market Value (as hereinafter
defined) or made as part of a tender or exchange offer made on the same terms
to all holders of such securities and complying with the applicable
requirements of the Securities Exchange Act of 1934 (the "Exchange Act") and
the rules and regulations thereunder or in a Public Transaction (as
hereinafter defined).
B. For the purposes of this Article XVIII:
1. An "Affiliate" of, or a person "Affiliated" with, a
specified person, is a person that directly, or indirectly through
one or more intermediaries, controls, or is controlled by, or is
under common control with, the person specified.
2. The term "Associate" used to indicate a relationship
with any person, means (1) any corporation or organization (other
than the Company or a Subsidiary of the Company) of which such
person is an officer or partner or is, directly or indirectly, the
beneficial owner of 5% or more of any class of equity securities,
(2) any trust or other estate in which such person has a substantial
beneficial interest or as to which such person serves as trustee or
in a similar fiduciary capacity, and (3) any relative or spouse of
such person, or any relative of such spouse, who has the same home
as such person.
3. A person shall be a "beneficial owner" of any Voting
Stock or Voting Stock Right:
(a) which such person or any of its Affiliates or
Associates beneficially owns, directly or indirectly; or
(b) which such person or any of its Affiliates or
Associates has (i) the right to acquire (whether such right is
exercisable immediately or only after the passage of time), pursuant
to any agreement, arrangement or understanding or upon the exercise
of conversion rights, exchange rights, warrants or options, or
otherwise, or (ii) any right to vote pursuant to any agreement,
arrangement or understanding; or
(c) which is beneficially owned, directly or
indirectly, by any other person with which such person or any of its
Affiliates or Associates has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting or
disposing of any security of any class of the Company or any of its
Subsidiaries.
(d) For the purposes of determining whether a person
is an Interested Stockholder, the relevant class of securities
outstanding shall be deemed to include all such securities of which
such person is deemed to be the "beneficial owner" through
application of this subparagraph 3, but shall not include any other
securities of such class which may be issuable pursuant to any
agreement, arrangement or understanding, or upon exercise of
conversion right, warrants or options, or otherwise, but are not yet
issued.
4. "Fair Market Value" means for any share of Voting
Stock or any Voting Stock Right, the average of the closing sale
prices during the 30-day period immediately preceding the repurchase
of such Voting Stock or Voting Stock Right, as the case may be, on
the Composite Tape for New York Stock Exchange-Listed Stocks, or, if
such Voting Stock or Voting Stock Right, as the case may be, is not
quoted on the Composite Tape, on the New York Stock Exchange, or, if
such Voting Stock or Voting Stock Rights, as the case may be, is not
listed on such Exchange, on the principal United States securities
exchange registered under the Exchange Act on which such Voting
Stock or Voting Stock Right, as the case may be, is listed, or if
such Voting Stock or Voting Stock Right, as the case may be, is not
listed on any such exchange, the average of the closing bid
quotations with respect to a share of such Voting Stock or Voting
Stock Right, as the case may be, during the 90-day period
immediately preceding the date in question on the National
Association of Securities Dealers, Inc. Automated Quotations System
or any system then in use, or if no such quotations are available,
the Fair Market Value on the date in question of a share of such
Voting Stock or Voting Stock Right, as the case may be, as
determined by the Board of Directors in good faith.
5. "Interested Stockholder" shall mean any person (other
than (i) the Company, (ii) any of its Subsidiaries, (iii) any
benefit plan or trust of or for the benefit of the Company or any of
its Subsidiaries, (iv) any trustee, agent or other representative of
any of the foregoing, or (v) any person who beneficially owned more
than 3% of any class of Voting Stock on July 11, 1985), who or
which:
(a) is the beneficial owner, directly or indirectly,
of more than 3% of any class of Voting Stock (or Voting
Stock Rights with respect to more than 3% of any such
class); or
(b) is an Affiliate of the Company and at any time
within the two-year period immediately prior to the date in
question was the beneficial owner, directly or indirectly,
of more than 3% of any class of Voting Stock (or Voting
Stock Rights with respect to more than 3% of any such
class); or
(c) is an assignee of or has otherwise succeeded to
any shares of any class of Voting Stock (or Voting Stock
Rights with respect to more than 3% of any such class)
which were at any time within the two-year period
immediately prior to the date in question beneficially
owned by an Interested Stockholder, unless such assignment
or succession shall have occurred pursuant to any Public
Transaction or a series of transactions including a Public
Transaction.
6. A "person" shall mean any individual, firm,
corporation or other entity (including a "group" within the meaning
of Section 13(d) of the Exchange Act).
7. A "Public Transaction" shall mean any (i) purchase of
shares offered pursuant to an effective registration statement under
the Securities Act of 1933, or (ii) open market purchases of shares
if, in either such case, the price and other terms of sale are not
negotiated by the purchaser and seller of the beneficial interest in
the shares.
8. The term "Subsidiary" shall mean any corporation at
least a majority of the outstanding securities of which having
ordinary voting power to elect a majority of the board of directors
of such corporation (whether or not any other class of securities
has or might have voting power by reason of the happening of a
contingency) is at the time owned or controlled directly or
indirectly by the Company or one or more Subsidiaries or by the
Company and one or more Subsidiaries.
9. The term "Voting Stock" shall mean stock of all
classes and series of the Company entitled to vote generally in the
election of directors.
10. The term "Voting Stock Right" shall mean any security
convertible into, and any warrant, option or other right of any kind
to acquire beneficial ownership of, any Voting Stock, other than
securities issued pursuant to any of the Company's employee benefit
plans.
C. A majority of the Board of Directors shall have the
power and duty to determine for the purposes of this Article XVIII,
on the basis of information known to it after reasonable inquiry,
all facts necessary to determine compliance with this Article XVIII,
including without limitation,
1. whether:
(a) a person is an Interested Stockholder;
(b) any Voting Stock and Voting Stock Right is
beneficially owned by any person;
(c) a person is an Affiliate or Associate of
another;
(d) a transaction is a Public Transaction; and
2. the Fair Market Value of any Voting Stock or
Voting Stock Right.
D. Notwithstanding anything contained in this
Certificate to the contrary, the affirmative vote of at least a
majority of all votes entitled to be cast by the holders of capital
stock entitled to vote generally in the election of directors,
voting together as a single class, shall be required to amend or
repeal this Article XVIII or to adopt any provision inconsistent
herewith.
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
CONAGRA, INC.
CONAGRA, INC., a corporation organized and existing under and by virtue
of the General Corporation Law of the State of Delaware, does hereby certify:
FIRST: That at a meeting of the Board of Directors of CONAGRA,
INC., resolutions were duly adopted setting forth proposed
amendments to the Certificate of Incorporation of said
corporation declaring said amendments to be advisable and
calling a meeting of the stockholders of said corporation
for consideration thereof. The resolutions setting forth
the proposed amendments are as follows:
"RESOLVED, that ARTICLE IV of the Certificate of
Incorporation entitled "Authorized Shares" be amended to
increase the total number of shares which this corporation
shall have authority to issue from 104,000,000 shares to
304,000,000 shares by increasing the authorized common
stock of a par value of $5.00 per share from 100,000,000
shares to 300,000,000 shares as set forth on Exhibit "A"
attached hereto and by this reference made a part hereof."
"FURTHER RESOLVED, that ARTICLE V of the Certificate of
Incorporation be amended to provide as set forth on Exhibit
"B" attached hereto and by this reference made a part
hereof."
SECOND: That thereafter, pursuant to resolution of its Board of
Directors, an annual meeting of the shareholders of said
corporation was duly called and held, upon notice in
accordance with Section 222 of the General Corporation Law
of the State of Delaware on September 18, 1986, at which
meeting the necessary number of shares as required by
statute were voted in favor of the amendments.
THIRD: That said amendments were duly adopted in accordance with
the provisions of Section 242 of the General Corporation
Law of the State of Delaware.
IN WITNESS WHEREOF, said CONAGRA, INC., has caused this Certificate to
be signed by L. B. THOMAS, its Vice President, and attested by DOROTHY YOUNG,
its Assistant Secretary, this 18th day of September, 1986.
CONAGRA, INC.
/s/ L. B. THOMAS
By______________________________
L. B. THOMAS, Vice
President
Attest:
/s/ DOROTHY YOUNG
________________________________
DOROTHY YOUNG, Assistant
Secretary
Exhibit "A"
ARTICLE IV
AUTHORIZED SHARES
The total number of shares which this corporation shall have authority
to issue is three hundred four million (304,000,000) shares, divided into
three hundred million (300,000,000) shares of Common Stock of a par value of
Five Dollars ($5.00) per share; one hundred fifty thousand (150,000) shares of
Class B Preferred Stock of a par value of Fifty Dollars ($50.00) per share;
two hundred fifty thousand (250,000) shares of Class C Preferred Stock of a
par value of One Hundred Dollars ($100.00) per share; one million one hundred
thousand (1,100,000) shares of Class D Preferred Stock without par value; and
two million five hundred thousand (2,500,000) shares of Class E Preferred
Stock, without par value.
The Class B Preferred Stock of this corporation may be divided into and
issued in series, and each series shall be so designated as to distinguish the
shares thereof from the shares of all other series and classes. All shares of
this Class shall be identical except as to the following relative rights and
preferences as to which there may be variations between different series
within Class B as determined by the Board of Directors: (a) the rate of
dividend; (b) whether the shares may be redeemed and, if so, the redemption
price and the terms and conditions of redemption; (c) the amount payable upon
shares in event of voluntary or involuntary liquidation; (d) sinking fund
provisions, if any, for the redemption or purchase of shares; and (e) the
terms and conditions, if any, on which shares may be converted.
The Class C Preferred Stock of this corporation may be divided into and
issued in series, and each series shall be so designated as to distinguish the
shares thereof from the shares of all other series and classes. The shares of
this Class shall not have any priority over Class B Preferred Stock as to
payment of dividends or as to distribution of assets upon liquidation,
distribution or winding up of the corporation. All shares of this Class shall
be identical except as to the following relative rights and preferences as to
which there may be variations between different series within Class C as
determined by the Board of Directors: (a) whether such shares shall be
granted voting rights and, if so, to what extent and upon what terms and
conditions; (b) the rates and times at which, and the terms and conditions on
which, dividends on such shares shall be paid and any dividend rights of
cumulation; (c) whether such shares shall be granted conversion rights and, if
so, upon what terms and conditions; (d) whether the corporation shall have the
right to redeem such shares and, if so, upon what terms and conditions;
(e) the liquidation rights (if any) of such shares, including whether such
shares shall enjoy any liquidation preference over the common stock; and
(f) such other designations, preferences, relative rights and limitations (if
any) attaching to such shares.
The Class D Preferred Stock of this corporation may be divided into and
issued in series, and each series shall be so designated as to distinguish the
shares thereof from the shares of all other series and classes. The shares of
this Class shall not have any priority over Class B Preferred Stock or Class C
Preferred Stock as to the payment of dividends or as to the distribution of
assets upon liquidation, distribution or winding up of the corporation. All
shares of this Class shall be identical except as to the following relative
right and preferences as to which there may be variations between different
series within Class D as determined by the Board of Directors: (a) whether
such shares shall be granted voting rights and, if so, to what extent and upon
what terms and conditions; (b) the rates and times at which, and the terms and
conditions on which, dividends on such shares shall be paid and any dividend
rights of cumulation; (c) whether such shares shall be granted conversion
rights and, if so, upon what terms and conditions; (d) whether the corporation
shall have the right to redeem such shares and, if so, upon what terms and
conditions; (e) the liquidation rights (if any) of such shares, including
whether such shares shall enjoy any liquidation preference over the common
stock; and (f) such other designations, preferences, relative rights and
limitations (if any) attaching to such shares.
The Class E Preferred Stock of this corporation may be divided into and
issued in series, and each series shall be so designated as to distinguish the
shares thereof from the shares of all other series and classes. The shares of
this Class shall not have any priority over Class B Preferred Stock, Class C
Preferred Stock or Class D Preferred Stock as to the payment of dividends or
as to the distribution of assets upon liquidation, distribution or winding up
of the corporation. All shares of this Class shall be identical except as to
the following relative rights and preferences as to which there may be
variations between different series within Class E as determined by the Board
of Directors: (a) whether such shares shall be granted voting rights and, if
so, to what extent and upon what terms and conditions; (b) the rates and times
at which, and the terms and conditions on which, dividends on such shares
shall be paid and any dividend rights of cumulation; (c) whether such shares
shall be granted conversion rights and, if so, upon what terms and conditions;
(d) whether the corporation shall have the right to redeem such shares and, if
so, upon what terms and conditions; (e) the liquidation rights (if any) of
such shares, including whether such shares shall enjoy any liquidation
preference over the common stock; and (f) such other designations,
preferences, relative rights and limitations (if any) attaching to such
shares.
No transfer of stock of this corporation shall be operative until
entered upon the books of the corporation.
EXHIBIT "B"
ARTICLE V
INDEMNIFICATION
The Corporation shall, to the extent required, and may, to the extent
permitted, by Section 102 and Section 145 of Delaware General Corporation Law
as amended from time to time, indemnify and reimburse all persons whom it may
indemnify and reimburse pursuant thereto. With respect to acts or omissions
occurring on or after September 18, 1986, no director shall be liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, provided, however, that this provision shall not eliminate
or limit the liability of a director (i) for any breach of the director's duty
of loyalty to the Corporation or its stockholders; (ii) for acts of omissions
not in good faith or which involve intentional misconduct or a knowing
violation of law; (iii) under Section 174 of the Delaware General Corporation
Law; or (iv) for any transaction from which the director derived an improper
personal benefit.
Notwithstanding the foregoing, the indemnification provided for in this
ARTICLE V shall not be deemed exclusive of any other rights to which those
entitled to receive indemnification or reimbursement hereunder may be entitled
under any by-law of this Corporation, agreement, vote or consent of
stockholders or disinterested directors or otherwise.
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
CONAGRA, INC.
CONAGRA, INC., a corporation organized and existing under and by virtue
of the General Corporation Law of the State of Delaware, does hereby certify:
FIRST: That at a meeting of the Board of Directors of CONAGRA,
INC., a resolution was duly adopted setting forth a
proposed amendment to the Certificate of Incorporation of
said corporation declaring said amendment to be advisable
and calling a meeting of the stockholders of said
corporation for consideration thereof. The resolution
setting forth the proposed amendment is as follows:
"RESOLVED, that the first paragraph of ARTICLE IV of the
Certificate of Incorporation entitled "AUTHORIZED SHARES"
be amended as stated on Exhibit "A" attached to reflect an
increase in the total number of shares which this company
shall have authority to issue from 304,000,000 shares to
604,000,000 shares by increasing the authorized common
stock of a par value of $5.00 per share from 300,000,000
shares to 600,000,000 shares with no increase in the
4,000,000 shares of authorized preferred stock."
SECOND: That thereafter, pursuant to resolution of its Board of
Directors, an annual meeting of the shareholders of said
corporation was duly called and held, upon notice in
accordance with Section 222 of the General Corporation Law
of the State of Delaware on September 28, 1989, at which
meeting the necessary number of shares as required by
statute were voted in favor of the amendment.
THIRD: That said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of
the State of Delaware.
IN WITNESS WHEREOF, said CONAGRA, INC., has caused this Certificate to
be signed by L. B. THOMAS, its Vice President, and attested by DOROTHY YOUNG,
its Assistant Secretary, this 28th day of September, 1989.
CONAGRA, INC.
/s/ L. B. THOMAS
By_______________________________
L. B. THOMAS
Vice President
Attest:
/s/ DOROTHY YOUNG
________________________________
DOROTHY YOUNG,
Assistant Secretary
Exhibit "A"
ARTICLE IV
AUTHORIZED SHARES
(FIRST PARAGRAPH)
The total number of shares which this corporation shall have authority
to issue is Six Hundred Four Million (604,000,000) shares, divided into Six
Hundred Million (600,000,000) shares of Common Stock of a par value of Five
Dollars ($5.00) per share; One Hundred Fifty Thousand (150,000) shares of
Class B Preferred Stock of a par value of Fifty Dollars ($50.00) per share;
Two Hundred Fifty Thousand (250,000) shares of Class C Preferred Stock of a
par value of One Hundred Dollars ($100.00) per share; One Million One Hundred
Thousand (1,100,000) shares of Class D Preferred Stock without par value; and
Two Million Five Hundred Thousand (2,500,000) shares of Class E Preferred
Stock, without par value.
The remainder of this Article shall remain unchanged in its
entirety.
STATEMENT OF RESOLUTIONS ESTABLISHING SERIES
OF CLASS E PREFERRED SHARES OF CONAGRA, INC.
Pursuant to Section 151(g) of the General Corporation Law of the State
of Delaware, ConAgra, Inc., a corporation organized and existing under the
laws of the State of Delaware, does hereby certify that the following
resolution providing for the issuance of 141,955.0008 shares of $2,500
Cumulative Convertible Voting Preferred Stock, Series 1, was adopted by its
Board of Directors pursuant to authority expressly vested in it by the
provisions of the Certification of Incorporation of ConAgra, Inc., as amended.
RESOLVED, that the Board of Directors of ConAgra, Inc., a
Delaware corporation (herein the "Company"), hereby establishes a
series of 141,955.0008 shares of Class E Preferred Stock, without par
value, of this Company which shall constitute the entirety of this
series, said shares to be known as $2,500 Cumulative Convertible Voting
Preferred Stock, Series 1, and shall be subject to the following
relative rights and preferences:
1. Designation of Series. The series shall be
designated "$2,500 Cumulative Convertible Voting Preferred Stock,
Series 1" (hereinafter called "$2,500 Convertible Preferred Stock").
The stated value of each share of $2,500 Convertible Preferred Stock is
$2,500.
2. Number of Shares. The number of shares of $2,500
Convertible Preferred Stock initially is 141,955.0008 which number the
Board of Directors may increase or decrease without a vote of
stockholders, but not decrease below the number of shares of the series
then outstanding.
3. Dividends. The dividend rate for the $2,500
Convertible Preferred Stock is $168.75 per share per annum, payable
quarterly, at the rate of $42.1875 per quarter, in cash. Dividends on
the $2,500 Convertible Preferred Stock shall be paid, or declared and a
sum sufficient for payment thereof Set Apart for Payment, before any
dividend or distribution in cash or other property (other than
dividends payable in stock ranking junior ("Junior Stock") to the
$2,500 Convertible Preferred Stock as to dividends and upon
liquidation, distribution, dissolution and winding-up) is declared,
paid or Set Apart for Payment on any class or series of Junior Stock.
Dividends on the $2,500 Convertible Preferred Stock shall accrue and be
cumulative from the date of issuance of the shares (which shall be the
effective date ("Effective Date") of the merger (the "Merger") of
Beatrice Company with a wholly-owned subsidiary of the Company pursuant
to the Agreement and Plan of Merger (the "Merger Agreement") dated as
of June 7, 1990). The amount of dividends so payable for any partial
period shall be determined on the basis of twelve 30-day months and a
360-day year. Dividends paid on the shares of $2,500 Convertible
Preferred Stock in an amount less than the total amount of such
dividends at the time accrued and payable on such shares shall be
allocated pro rata among all such shares then outstanding. "Set Apart
for Payment" shall mean the Company shall have irrevocably deposited
with a bank or trust company having capital and surplus of at least
$100,000,000, in trust for the exclusive benefit of the holders of
$2,500 Convertible Preferred, funds sufficient to satisfy the Company's
payment obligation.
4. Dividend Payments Dates; Record Dates. The dates on
which dividends on the $2,500 Convertible Preferred Stock shall be
payable are January 1, April 1, July 1 and October 1 of each year (or,
if any of such days is not a Business Day, the Business Day next
preceding such day). The Board of Directors may fix a record date for
the determination of holders of shares of $2,500 Convertible Preferred
Stock entitled to receive payment of a dividend declared thereon, which
record date shall be no more than 60 days and no less than 10 days
prior to the payment date fixed therefor. For purposes hereof,
"Business Day" shall mean any day, other than a Saturday or Sunday, on
which commercial banks are not authorized or required to close in New
York City.
5. Redemption.
(a) Optional Redemption. The $2,500 Convertible
Preferred Stock shall not be redeemable at the option of the Company
prior to the fifth anniversary of the Effective Date of the Merger (the
"Initial Redemption Date"). Thereafter, subject to the limitation set
forth in Section 5(e) below all or any part of the $2,500 Convertible
Preferred Stock shall be redeemable at the option of the Company and
the redemption prices per share shall be as follows plus an amount
equal to all accrued and unpaid dividends through and including the
redemption date (as defined below):
If Redemption Date Is During Redemption
12-Month Period Beginning On: Price
Initial Redemption Date in:
1995 . . . . . . . . . . . . . . . . . .$2,548.225
The anniversary of the Initial Redemption
Date in each of the following years:
1996 . . . . . . . . . . . . . . . . . .$2,524.10
1997 and thereafter. . . . . . . . . . .$2,500.00
In the case of the redemption of a part of the shares
of $2,500 Convertible Preferred Stock, the shares to be so redeemed
shall be selected pro rata.
In order to facilitate the redemption of shares of $2,500
Convertible Preferred Stock, the Board of Directors may fix a record
date for the determination of holders of shares of $2,500 Convertible
Preferred Stock to be redeemed not more than 90 days or less than 45
days prior to the redemption date. Notice of any redemption pursuant
to this Section 5 shall be sent, by prepaid certified mail, at least
45, but not more than 90, days in advance of the date designated for
such redemption (herein called the "redemption date") to the holders of
record of shares of $2,500 Convertible Preferred Stock to be redeemed
at their respective addresses as the same shall appear on the books of
the Company. Each such notice shall state: (1) the redemption date;
(2) the number of shares to be redeemed and, if less than all the
shares held by such holder are to be redeemed, the number of such
shares to be redeemed from such holder; (3) the redemption price; (4)
the place or places where certificates for such shares are to be
surrendered for payment of the redemption price; and (5) that dividends
on the shares to be redeemed will cease to accrue after such redemption
date. If less than all the shares represented by any such surrendered
certificate are redeemed, a new certificate shall be issued
representing the unredeemed shares.
(b) Mandatory Redemption. On the twelfth anniversary of
the Effective Date, subject to the provisions of Section 5(e) hereof,
the Company shall call for redemption all shares of $2,500 Convertible
Preferred Stock, by paying therefor in cash $2,500 per share plus all
accrued and unpaid dividends thereon through the date of payment, such
sum being the redemption price. Notice of such redemption shall be
given to the holders of record of $2,500 Convertible Preferred Stock as
provided in the immediately preceding paragraph. On the date fixed for
redemption, and stated in such notice, each holder of $2,500
Convertible Preferred Stock shall surrender such holder's certificate
or certificates at the place designated in such notice and thereupon be
entitled to receive payment of the redemption price.
(c) Payment. The Company shall, on or prior to the date
fixed for redemption of any shares pursuant to Sections 5(a) or 5(b),
but not earlier than 45 days prior to the date fixed for redemption,
Set Aside for Payment a sum sufficient to redeem the shares called for
redemption, with irrevocable instructions and authority to the
redemption agent to complete the redemption thereof and to pay such
funds to the respective holders of such shares, as evidenced by a list
of such holders certified by an officer of the Company, upon surrender
of their respective share certificates. From and after the date of
such deposit, the shares represented thereby shall no longer be deemed
outstanding, and all rights of the holders of the shares of $2,500
Convertible Preferred Stock called for redemption, as stockholders of
the Company with respect to such shares, shall cease and terminate,
except that their right to receive the redemption price, without
interest, upon the surrender of their respective certificates shall
never cease, their right to convert their shares into Common Stock as
provided herein shall not cease until the close of business on the day
prior to the redemption date and their right to receive dividends and
distributions shall not cease until the close of business on the
redemption date. In case the holders of any shares shall not, within
one year after such deposit, claim the amount deposited for redemption
thereof, the redemption agent shall, upon demand, pay over to the
Company the balance of such amount so deposited. Thereupon, such
redemption agent shall be relieved of all responsibility to the holders
thereof and the sole right of such holders shall be as general
creditors of the Company. To the extent that shares of $2,500
Convertible Preferred Stock called for redemption are converted into
Common Stock prior to the date fixed for redemption, the amount
deposited by the Company to redeem such shares shall immediately be
returned to the Company. Any interest accrued on any funds so
deposited shall belong to the Company, and shall be paid to it from
time to time on demand.
(d) Redemption at Option of Holders. In the event that
(i) (a) any person (with the defined meaning as used in Section 13(d)
of the Securities Exchange Act of 1934, as amended (the "Exchange
Act")) becomes the beneficial owner (as defined in Rule 13d-3 under the
Exchange Act) of more than 50% of the Common Stock of the Company
outstanding after giving effect to such acquisition, or securities
constituting more than 50% of the total voting power of the Company
after giving effect to such acquisition (a "Share Acquisition"), or
(ii) the Company sells or otherwise disposes of all or substantially
all of its assets ("Extraordinary Asset Sale"), or (iii) an
"Extraordinary Dividend or Buyback" (as hereinafter defined) occurs,
each holder of $2,500 Convertible Preferred Stock, subject to the
conditions of this Section 5(d) and Section 5(e) below, shall have the
option to require the Company to redeem all, but not less than all, of
the $2,500 Convertible Preferred Stock owned by such holder at $2,500
per share plus accrued and unpaid dividends thereon, whether or not
declared, through the redemption date.
The Company shall not cause an Extraordinary Dividend or
Buyback to occur, or permit an Extraordinary Asset sale, unless, prior
to the occurrence of any thereof, the Company takes all such actions,
if any, required by its Certificate of Incorporation, including Article
XVIII thereof, if applicable, to permit the Company to redeem the
$2,500 Convertible Preferred Stock in accordance with the applicable
provisions of this Section 5.
For purposes of this Section 5(d), an "Extraordinary
Dividend or Buyback" shall occur if the Company shall, in one
transaction or a series of related transactions following the Effective
Date, pay or effect a dividend or distribution in respect of its Common
Stock (other than a dividend payable solely in Common Stock or rights
to acquire Common Stock of the Company or a regular quarterly cash
dividend on the Common Stock), or shall repurchase, redeem, retire,
exchange or otherwise acquire for value any of its Common Stock (other
than solely from any wholly-owned subsidiary and other than solely for
Common Stock or rights to acquire Common Stock of the Company) if the
sum of the cash and the "Fair Market Value" (as hereinafter defined) of
the securities and assets paid or distributed in connection therewith
(determined on the record date for each such dividend or distribution
or the effective date for each such purchase, redemption, retirement,
exchange or other acquisition) exceeds 30% of the aggregate Fair Market
Value of all Common Stock of the Company outstanding on the record date
for the latest such dividend or distribution or the effective date for
the latest such purchase, redemption, retirement, exchange or other
acquisition (determined on such record or effective dates).
"Fair Market Value" shall mean (i) as to securities which
are publicly traded, the average of the daily closing prices (based on
the 4:30 p.m., New York time, NYSE Composite Transactions closing price
on the applicable date) of such securities for the fifteen consecutive
trading days immediately preceding the date of determination and (ii)
as to securities which are not publicly traded or any other property,
the fair value thereof as determined in good faith by the Board of
Directors of the Company or a duly authorized committee thereof, which
determination shall be conclusive.
In the event of any Share Acquisition or Extraordinary
Dividend or Buyback, the Company shall, at the close of business on the
redemption date after the Share Acquisition or Extraordinary Dividend
or Buyback, upon the written demand of any record holder of $2,500
Convertible Preferred Stock who so requests, redeem all of the $2,500
Convertible Preferred Stock owned by such holder at $2,500 per share
plus accrued and unpaid dividends through such redemption date. Within
five business days following any Extraordinary Dividend or Buyback and
within five business days after the Company has knowledge that any such
Share Acquisition has occurred, it shall mail to each record holder of
$2,500 Convertible Preferred Stock a form of written demand to be used
by such holder to exercise his right of redemption (a "Demand Form")
and a notice which shall disclose the occurrence of the Share
Acquisition or Extraordinary Dividend or Buyback, as the case may be, a
description in reasonable detail of the terms of such Share Acquisition
or Extraordinary Dividend or Buyback, and the right of such holder to
require the Company to redeem such $2,500 Convertible Preferred Stock
pursuant to this Section 5(d) and shall state the redemption date, the
redemption price, the place or places of payment, that payment will be
made upon presentation and surrender of the shares of $2,500
Convertible Preferred Stock and the date (which must be at least 30
days after the notice is mailed to the stockholders) by which such
holder must notify the Company if it elects to require the Company to
make such redemption. Each record holder of $2,500 Convertible
Preferred Stock which elects to require the Company to redeem on the
redemption date all of the $2,500 Convertible Preferred Stock which
such holder owns shall deliver to the Company not later than the
redemption date a completed Demand Form relating to the $2,500
Convertible Preferred Stock to be redeemed. The term "redemption
date," as used in connection with a redemption resulting from a Share
Acquisition or an Extraordinary Dividend or Buyback, shall mean the
close of business of the 45th day after the date of the Extraordinary
Dividend or Buyback or the date the Company has knowledge that a Share
Acquisition has occurred, or, if such date is not a Business Day, the
next Business Day after such 45th day.
In the event of any sale of assets described in the first
paragraph of this Section 5(d) , the Company shall, immediately prior
to the effectiveness of such sale ("Sale Closing") , upon the demand of
any record holder of $2,500 Convertible Preferred Stock which so
requests, redeem all of the $2,500 Convertible Preferred Stock owned by
each such holder at $2,500 per share plus accrued and unpaid dividends
through the date on which such Sale Closing occurs. Not later than 35
days prior to the effectiveness of any such Sale Closing, the Company
shall mail by certified or registered mail to each record holder of
$2,500 Convertible Preferred Stock a Demand Form and a notice which
shall disclose such Sale Closing, described in reasonable detail the
terms of the related asset sale, and the right of such holder of $2,500
Convertible Preferred Stock to require the Company to redeem such
$2,500 Convertible Preferred Stock pursuant to this Section 5(d), and
shall state the anticipated redemption date, the redemption price, the
place or places that payment will be made upon presentation and
surrender of shares of $2,500 Convertible Preferred Stock and the date
(which must be at least 30 days after the notice is mailed to the
stockholders) by which such holder must notify the Company if it elects
to require the Company to make such redemption. Each record holder of
$2,500 Convertible Preferred Stock which elects to require the Company
to redeem on the redemption date all of the $2,500 Preferred Stock
which it owns must submit to the Company not later than the close of
business on the redemption date a completed Demand Form relating to the
$2,500 Convertible Preferred Stock to be redeemed. The term
"redemption date", as used in connection with a redemption upon the
occurrence of a Sale Closing shall mean the day on which the Sale
Closing occurs.
Any notice by the Company which is mailed as herein
provided shall be conclusively presumed to have been duly given,
whether or not the holder of $2,500 Convertible Preferred Stock
receives such notice; and failure to give such notice by mail, or any
defect in such notice, to the holders of any shares shall not affect
the validity of the proceedings for the redemption of any other shares
of $2,500 Convertible Preferred Stock. An election by a holder of
$2,500 Convertible Preferred Stock to have the Company redeem such
stock pursuant to this Section 5(d) shall become irrevocable on the
relevant redemption date. On or after the date fixed for redemption as
stated in any notice delivered by the Company, each holder of the
shares called for redemption shall surrender the certificates
evidencing such shares to the Company at the place designated in such
notice and shall thereupon be entitled to receive payment of the
relevant redemption price in accordance with the terms of this Section
5(d). If any such certificates shall be so surrendered in connection
with a redemption required to be made as a result of any Sale Closing
and for whatever reason such Sale Closing will not become effective,
then the Company shall cause such certificates to be returned promptly
to the respective holders thereof by registered mail or other secure
means.
If, on the date fixed for redemption under any provision of
this Section 5(d), funds necessary for the redemption shall have been
Set Aside for Payment, then in the case of any shares of $2,500
Convertible Preferred Stock to be redeemed as a result of an
Extraordinary Dividend or Buyback, a Sale Closing or a Share
Acquisition, after the close of business on the redemption date,
notwithstanding that the certificates evidencing any shares which the
holders thereof had elected to have redeemed shall not have been
surrendered, dividends with respect to such shares shall cease to
accrue, such shares shall no longer be deemed outstanding, the holders
thereof shall cease to be stockholders, and all rights whatsoever with
respect to such shares (except the right of the holders to receive the
relevant redemption price without interest upon surrender of their
certificates therefor) shall terminate. Shares of $2,500 Convertible
Preferred Stock redeemed by the Company shall be restored to the status
of authorized but unissued shares of Class E Preferred Stock of the
Company, pursuant to the General Corporation Law of the State of
Delaware without designation as to series, and may thereafter be
reissued, but not as shares of $2,500 Convertible Preferred Stock.
Any redemption payment required to be made pursuant to
Section 5(b) or 5(d) shall be paid, or a sum sufficient for payment
thereof Set Apart for Payment, before any dividend or distribution in
cash or other property (other than dividends payable in Junior Stock)
is declared, paid or Set Apart for Payment on any class or series of
Junior Stock.
(e) Prior Approvals. On or before the redemption date
for any redemption of the $2,500 Convertible Preferred Stock pursuant
to the provisions of this Section 5, the Company will take such
actions, if any, required to be taken by the Company by its Certificate
of Incorporation, including Article XVIII thereof, to permit the
Company to redeem the $2,500 Convertible Preferred Stock in accordance
with the applicable provisions of this Section 5.
6. Liquidation Rights. Upon the liquidation,
dissolution or winding up of the affairs (a "Liquidation") of the
Company, whether voluntary or involuntary, the holders of shares of the
$2,500 Convertible Preferred Stock shall be entitled to receive $2,500
per share plus in each case an amount equal to all accrued and unpaid
dividends thereon (whether or not declared) before any payment or
distribution of the assets of the Company, or proceeds thereof (whether
capital or surplus), shall be made to or set apart for the holders of
Junior Stock. If, upon any Liquidation of the Company, the assets
available for distribution to the holders of $2,500 Convertible
Preferred Stock and any other stock of the Company ranking on a parity
with the $2,500 Convertible Preferred Stock upon Liquidation shall be
insufficient to pay the holders of all outstanding shares of $2,500
Convertible Preferred Stock and all other such parity stock the full
amounts (including all dividends accrued and unpaid) to which they
shall be entitled, then such assets or the proceeds therefrom shall be
distributed among such holders ratably in proportion to the full amount
to which they are otherwise entitled.
7. Conversion. The shares of $2,500 Convertible
Preferred Stock shall be convertible, at the option of the holders
thereof, at any time at the principal Company office located in Omaha,
Nebraska, or at the offices of such duly appointed transfer agents for
the $2,500 Convertible Preferred Stock, if any, as the Board of
Directors of the Company may determine, into fully paid and non-
assessable shares (calculated to the nearest 1/10,000 of a share) of
Common Stock of the Company at the rate of 67.8485 shares of Common
Stock for each share of $2,500 Convertible Preferred Stock, provided,
however, that in case of the redemption of any shares of $2,500
Convertible Preferred Stock, such right of conversion shall cease and
terminate, as to the shares called for redemption, at the close of
business on the day prior to the date fixed for redemption, unless
default shall be made in the payment of the redemption price. The rate
at which shares of Common Stock shall be deliverable in exchange for
shares of $2,500 Convertible Preferred Stock upon conversion thereof is
hereinafter referred to as the "conversion rate." The conversion rate
shall be subject to adjustment from time to time in certain instances
as hereinafter provided, except that no adjustment shall be made unless
by reason of the happening of any one or more of the events hereinafter
specified, the conversion rate then in effect shall be changed by 1% or
more, but any adjustment of less than 1% that would otherwise be
required then to be made shall be carried forward and shall be made at
the time of and together with any subsequent adjustment which, together
with adjustment or adjustments so carried forward, amounts to 1% or
more, provided that such adjustment shall be made in all events
(regardless of whether or not the amount thereof or the cumulative
amount thereof amounts to 1% or more) upon the happening of one or more
of the events specified in either paragraph (a) or paragraph (d) of
this Section 7. Each adjustment in the conversion rate shall be
rounded to the nearest four decimal places. Upon conversion the holder
shall be entitled to receive an amount in cash equal to all dividends
accrued and unpaid on the $2,500 Convertible Preferred Stock
surrendered for conversion to the conversion date.
Before any holder of $2,500 Convertible Preferred Stock
shall be entitled to convert the same into Common Stock, he shall
surrender the certificate or certificates for such $2,500 Convertible
Preferred Stock at the principal office of the Company in Omaha,
Nebraska, or at the office of any transfer agent appointed as
aforesaid, which certificate or certificates, if the Company shall so
request, shall be duly endorsed to the Company or in blank, and shall
complete the form printed on such certificate or certificates
indicating his election to convert such shares or otherwise give
written notice to the Company that he elects so to convert said $2,500
Convertible Preferred Stock, and shall state in writing therein the
name or names in which he wishes the certificate or certificates for
Common Stock to be issued.
The Company will, as soon as practicable after such
surrender of certificates for $2,500 Convertible Preferred Stock
accompanied by the written notice and the statement above prescribed,
issue and deliver at the principal office of the Company in Omaha,
Nebraska, or at the office of any transfer agent appointed as
aforesaid, to the person for whose account such $2,500 Convertible
Preferred Stock was so surrendered, or to his nominee or nominees,
certificates for the number of full shares of Common Stock to which he
shall be entitled as aforesaid, together with a cash adjustment (based
on the 4:30 p.m., New York time, NYSE Composite transactions closing
price on the conversion date) for any fraction of a share as
hereinafter stated, if not evenly convertible. Subject to the
following provisions of this paragraph, such conversion shall be deemed
to have been made as of the date of such surrender of the $2,500
Convertible Preferred Stock to be converted, and the person or persons
entitled to receive the Common Stock issuable upon conversion of such
$2,500 Convertible Preferred Stock shall be treated for all purposes as
the record holder or holders of such Common Stock on such date. The
Company shall not be required to convert, and no surrender of $2,500
Convertible Preferred Stock shall be effective for that purpose, while
the stock transfer books of the Company are closed for any purpose; but
the surrender of $2,500 Convertible Preferred Stock for conversion
during any period while such books are closed shall become effective
for conversion immediately upon the reopening of such books, as if the
conversion had been made on the date such $2,500 Convertible Preferred
Stock was surrendered, and at the conversion rate in effect at the date
of such surrender.
The conversion rate for the $2,500 Convertible Preferred
Stock shall be subject to adjustment from time to time as follows:
(a) If the Company shall at any time or from time to
time pay a dividend or make a distribution on its Common
Stock in Common Stock, subdivide its outstanding shares of
Common Stock into a larger number of shares or combine its
outstanding shares of Common Stock into a smaller number of
shares, the conversion rate in effect immediately prior
thereto shall be adjusted so that each share of $2,500
Convertible Preferred Stock shall thereafter be convertible
into the number of shares of Common Stock which the holder
of a share of $2,500 Convertible Preferred Stock would have
been entitled to receive after the happening of any of the
events described above had such share been converted
immediately prior to the happening of such event. An
adjustment made pursuant to this paragraph (a) shall become
effective retroactively to the record date in the case of a
dividend and shall become effective on the effective date
in the case of a subdivision or combination.
(b) If an event occurs pursuant to which Rights
("Rights"), issued pursuant to the Rights Agreement dated
July 10, 1986, between the Company and Manufacturers
Hanover Trust Company, as Rights agent, or any amendment,
supplement or substitution thereof (the "Rights Plan")
detach and become separable from the Common Stock, and
following such event any holder of the Rights surrenders
the Rights Certificate (as defined in the Rights Plan) and
purchases shares of Common Stock in accordance with such
Rights Plan at a price per share less than the average
market price per share (determined as provided below) of
the Common Stock on the date such Right is surrendered and
such shares purchased ("Exercise Date"), then in each such
case, except in the case of a holder who is an Acquiring
Person (as defined in the Rights Plan), the conversion rate
shall be adjusted so that the same shall equal the rate
determined by multiplying the conversion rate in effect
immediately prior to the Exercise Date by a fraction the
numerator of which shall be the sum of the number of shares
of Common Stock outstanding immediately prior to such
Exercise Date plus the number of additional shares of
Common Stock so issued pursuant to such Rights Plan, and
the denominator of which shall be the sum of the number of
shares of Common Stock outstanding immediately prior to
such Exercise Date plus the number of shares of Common
Stock which the aggregate price of the total number of
shares so issued pursuant to such Rights Plan would
purchase at such average market price. For the purposes of
this paragraph (b), the number of shares of Common Stock at
any time outstanding shall not include shares held in the
treasury of the Company.
For the purpose of any computation under this Section
7, the average market price per share of Common Stock on
any date shall be the average of the daily closing prices
(based on the 4:30 p.m., New York time, NYSE Composite
transactions closing price on the applicable date, or the
closing price on such other exchange as may constitute the
principal trading market for the Common Stock, or the last
quoted bid price in the over-the-counter market if the
Common Stock is not listed on an exchange and is so traded)
for the fifteen (15) consecutive trading days commencing
twenty (20) trading days before the earlier of the date in
question and the trading day before the "ex date", if any,
with respect to the issuance or distribution requiring such
computation; provided that if the Common Stock is not
listed on an exchange or traded in the over-the-counter
market, the average market price shall be the fair market
value as determined in good faith by the Board of Directors
or any duly authorized committee. The term "ex date", when
used with respect to any issuance or distribution, means
the first trading day on which the Common Stock trades in
the market from which the closing price is then to be
determined.
(c) If the Company shall distribute to all holders
of Common Stock (i) any rights or warrants to subscribe for
or purchase any security of the Company (other than those
referred to in paragraph (b) above) or any evidence of
indebtedness or other securities of the Company (other than
Common Stock), or (ii) cash or other assets (other than
regular quarterly dividends payable solely in cash that may
from time to time be fixed by the Board of Directors of the
Company), then in each such case the conversion rate shall
be adjusted so that the same shall equal the rate
determined by multiplying the conversion rate in effect on
the day immediately preceding the record date for the
determination of the stockholders entitled to receive such
distribution by a fraction the numerator of which shall be
the average market price per share (determined as provided
in paragraph (b) above) of the Common Stock on such record
date and the denominator of which shall be such average
market price per share less the then fair market value (as
determined in good faith by the Board of Directors of the
Company or a duly authorized committee thereof, which
determination shall be conclusive) of the portion of the
cash or other assets, rights, warrants, evidences of
indebtedness or other securities so distributed applicable
to one (1) share of Common Stock. Such adjustment shall
become effective retroactively immediately after the record
date.
(d) In case of any capital reorganization or any
reclassification of the capital stock of the Company or in
case of the consolidation or merger of the Company with or
into any other person (other than a merger which does not
result in any reclassification, conversion, exchange or
cancellation of outstanding shares of Common Stock) or in
case of any sale or conveyance of all or substantially all
of the assets of the Company, the person formed by such
consolidation or resulting from such capital
reorganization, reclassification or merger or which
acquires such assets, as the case may be, shall make
provision in the articles or certificate of incorporation
of such person such that each share of $2,500 Convertible
Preferred Stock shall thereafter be convertible, subject to
further adjustment as provided in subparagraph (e) below,
into the kind and amount of shares of stock, other
securities, cash and other property receivable upon such
capital reorganization, reclassification of capital stock,
consolidation, merger, sale or conveyance, as the case may
be, by a holder of the number of shares of Common Stock
into which such share of $2,500 Convertible Preferred Stock
was convertible immediately prior to such capital
reorganization, reclassification of capital stock,
consolidation, merger, sale or conveyance.
(e) In the event that at any time, as a result of
any adjustment made pursuant to subparagraphs (a) to (d)
above, the holder of any $2,500 Convertible Preferred Stock
thereafter surrendered for conversion shall become entitled
to receive any securities of the Company or any other
person other than shares of Common Stock, the number and
type of such other securities so receivable upon conversion
of any share of $2,500 Convertible Preferred Stock shall be
subject to adjustment from time to time in a manner and on
terms as nearly equivalent as practicable to the provisions
contained in subparagraphs (a) to (d) above, with respect
to the Common Stock.
(f) Whenever the conversion rate is adjusted as
provided in this Section 7, the Company shall forthwith
file with any transfer agent for the $2,500 Convertible
Preferred Stock appointed as aforesaid a certificate signed
by the President or one of the Vice Presidents of the
Company and by its Treasurer or an Assistant Treasurer,
stating the adjusted conversion rate determined as provided
in this Section 7. Such certificate shall show in detail
the facts requiring such adjustment. Whenever the
conversion rate is adjusted, the Company will forthwith
cause a notice stating the adjustment and the adjusted
conversion rate to be mailed to the respective holders of
record of $2,500 Convertible Preferred Stock. Such
transfer agent shall be under no duty to make any inquiry
or investigation as to the statements contained in any such
certificate or as to the manner in which any computation
was made, but may accept such certificate as conclusive
evidence of the statements therein contained, and each
transfer agent shall be fully protected by the Company with
respect to any and all acts done or action taken or
suffered by it in reliance thereon. No transfer agent in
its capacity as transfer agent shall be deemed to have any
knowledge with respect to any change of capital structure
of the Company unless and until it receives a notice
thereof pursuant to the provisions of this paragraph (f)
and in default of any such notice each transfer agent may
conclusively assume that there has been no such change.
The Company shall at all times reserve and keep available,
out of its authorized and unissued Common Stock, solely for the purpose
of effecting the conversion of the $2,500 Convertible Preferred Stock,
such number of shares as shall from time to time be sufficient to
effect the conversion of all shares of $2,500 Convertible Preferred
Stock from time to time outstanding. The Company shall from time to
time, in accordance with the laws of Delaware, increase the authorized
amount of its Common Stock if at any time the number of shares of
Common Stock remaining unissued shall not be sufficient to permit the
conversion of all the then outstanding $2,500 Convertible Preferred
Stock.
No fractions of shares of Common Stock are to be issued
upon conversion, but in lieu thereof the Company will pay therefor in
cash based on the closing price (determined as provided in the last
sentence of paragraph (b) above) of the Common Stock on the business
day next preceding the day of conversion. If more than one certificate
representing $2,500 Convertible Preferred Stock shall be surrendered
for conversion at one time by the same holder, the number of full
shares issuable upon conversion thereof shall be computed on the basis
of the aggregate number of shares of $2,500 Convertible Preferred Stock
so surrendered.
The Company will pay any and all issue and other taxes
(other than taxes based on income) that may be payable in respect of
any issue or delivery of shares of Common Stock on conversion of $2,500
Convertible Preferred Stock pursuant hereto. The Company shall not,
however, be required to pay any tax which may be payable in respect of
any transfer involved in the issue and delivery of Common Stock in a
name other than that in which the $2,500 Convertible Preferred Stock so
converted was registered, and no such issue or delivery shall be made
unless and until the person requesting such issue has paid to the
Company the amount of any such tax, or has established, to the
satisfaction of the Company, that such tax has been paid.
8. Effects of Conversion on Capital and Surplus. Upon
conversion of $2,500 Convertible Preferred Stock, the capital
attributable to the Common Stock issued upon such conversion shall be
the aggregate par value thereof, and the stated capital and capital
surplus (capital in excess of par or stated value) of the Company
shall, to the extent permitted by law, be correspondingly increased or
reduced to reflect the difference between the stated value of the
$2,500 Convertible Preferred Stock so converted and the par value of
the Common Stock issued upon conversion. Any shares of $2,500
Convertible Preferred Stock redeemed, purchased or otherwise
reacquired, or surrendered for conversion shall be cancelled and
restored to the status of authorized but unissued shares of Class E
Preferred Stock, but shall not thereafter be issued as shares of $2,500
Convertible Preferred Stock.
9. Voting Rights. Holders of the $2,500 Convertible
Preferred Stock shall have the following voting rights in addition to
any voting rights provided by law or in the Company's Certificate of
Incorporation (as it may be amended from time to time):
(a) At any annual or special meeting of stockholders
at which holders of Common Stock of the Company are
entitled to vote or pursuant to any written consent of
stockholders, each holder of shares of $2,500 Convertible
Preferred Stock shall be entitled to cast 17 votes per
share, voting as a single class with the Common Stock. The
same record date shall be used for all classes of stock
entitled to vote at any such meeting or pursuant to any
such consent.
(b) Whenever (i) dividends on the $2,500 Convertible
Preferred Stock shall be in arrears in an amount equal to
at least six quarterly dividends (whether or not
consecutive), thereafter and until all such dividends shall
have been paid in full or declared and Set Apart for
Payment or (ii) the Company shall have not redeemed shares
of $2,500 Convertible Preferred Stock on the date such
redemption is required pursuant to Sections 5(b) or 5(d)
hereof, thereafter and until such redemption shall have
been performed or all funds necessary therefore Set Apart
for Payment, the holders of the $2,500 Convertible
Preferred Stock, voting separately as a class, will be
entitled to vote for and elect two directors in addition to
then existing board members. Such right of the holders of
$2,500 Convertible Preferred Stock to vote for the election
of such two directors may be exercised at any annual
meeting or at any special meeting called for such purpose
as hereinafter provided or at any adjournment thereof, or
by written consent, until all dividends (or other amounts
payable) in default on such outstanding shares of $2,500
Convertible Preferred Stock shall have been paid in full
(or such dividends or other amounts payable shall have been
declared and funds sufficient therefor Set Apart for
Payment), at which time the term of office of the two
directors so elected shall terminate automatically (subject
to revesting in the event of each and every subsequent
default of the. character specified in the preceding
sentence). So long as such right to' vote continues, the
Secretary of the Company may call, and upon the written
request of the holders of record of 10% of the outstanding
shares of $2,500 Convertible Preferred Stock addressed to
him at the principal office of the Company shall call, a
special meeting of the holders of such shares for. the sole
purpose of the election of such two directors, as provided
herein. Such meeting shall be held not less than 45 nor
more than 90 days after the accrual of such right, at the
place and upon the notice provided by law and in the By-
Laws of the Company for the holding of the meetings of
stockholders. No such special meeting or adjournment
thereof shall be held on a date less than 30 days before an
annual meeting of stockholders or any special meeting in
lieu thereof, provided that at such annual meeting
appropriate provisions are made to allow the holders of the
$2,500 Convertible Preferred Stock to exercise such right
at such meeting. If at any such annual or special meeting
or, any adjournment thereof, the holders of a majority of
the then outstanding shares of $2,500 Convertible Preferred
Stock entitled to vote in such election shall be present or
represented by proxy, or if the holders of a majority of
the outstanding shares of $2,500 Convertible Preferred
Stock shall have acted by written consent in lieu of a
meeting, then the authorized number of directors of the
Company shall be increased by two, and the holders of
$2,500 Convertible Preferred Stock shall be entitled to
elect such two additional directors. The absence of a
quorum of the holders of any other class or series of
capital stock of the Company at any such annual or special
meeting shall not affect the exercise by the holders of the
$2,500 Convertible Preferred Stock of such voting rights.
Directors so elected shall serve until the next annual
meeting or until their successors shall be elected, unless
the term of office of the persons so elected as directors
shall have terminated by virtue of the circumstances set
forth in the second sentence of this Section 9(b). If any
vacancy occurs among the directors so elected by the
holders of $2,500 Convertible Preferred Stock as a class,
the remaining director who shall have been so elected may
appoint a successor to hold office for the unexpired term
of the director whose place shall be vacant, and such
successor shall be deemed to have been elected by the
holders of $2,500 Convertible Preferred Stock. If both
directors so elected by the holders of $2,500 Convertible
Preferred Stock shall cease to serve as directors before
their terms shall expire, the holders of $2,500 Convertible
Preferred Stock then outstanding and entitled to vote for
such directors may, at a special meeting of such holders
called as provided above, or by written consent as
hereinabove provided, elect successors to hold office for
the unexpired terms of the directors whose places shall be
vacant. After the holders of $2,500 Convertible Preferred
Stock shall have exercised their right to elect directors
pursuant to the terms of this Section 9(b), the authorized
number of directors shall not be increased, regardless of
the terms of any Junior Stock, except by a class vote of
the holders of $2,500 Convertible Preferred Stock as
provided above. The rights of holders of $2,500
Convertible Preferred Stock to elect directors pursuant to
the terms of this Section 9(b) shall not be adversely
affected by the voting or other rights applicable to any
other security of the Company.
(c) So long as any shares of $2,500 Convertible
Preferred Stock shall be outstanding and unless the vote or
consent of the holders of a greater number of shares shall
then be required by law, the prior vote or consent of the
holders of at least 66 2/3% of the shares of $2,500
Convertible Preferred Stock at the time outstanding, voting
as a single class, given in person or by proxy, either in
writing or by a vote at a meeting called for the purpose,
shall be necessary for (i) authorizing, effecting or
validating the amendment, alteration or repeal of any of
the provisions of this resolution or the Certificate of
Incorporation of the Company in any way so as to affect
adversely the powers, preferences or rights of $2,500
Convertible Preferred Stock or (ii) issue any shares of
$2,500 Convertible Preferred Stock except as expressly
provided for in the Merger Agreement.
10. No Purchase, Retirement or Sinking Fund. The shares
of $2,500 Convertible Preferred Stock shall not be subject to the
operation of any purchase, retirement or sinking fund.
11. Priority. The Common Stock of the Company, now or
hereafter issued, shall rank junior to the $2,500 Convertible Preferred
Stock as to payment of dividends and as to distributions of assets upon
liquidation, dissolution or winding up of the Company, whether
voluntary or involuntary. The $2,500 Convertible Preferred Stock shall
rank on a parity as to the payment of dividends and distributions of
assets upon liquidation, dissolution or winding-up of the Company,
whether voluntary or involuntary, with all classes and series of
Preferred Stock of the Company issued and outstanding on the date of
issuance of the $2,500 Convertible Preferred Stock or subsequently
issued, except if subsequently issued stock is stated to be junior by
its terms.
12. Restriction on Junior Payments. For as long as any
shares of $2,500 Convertible Preferred Stock are outstanding, the
Company shall not declare, pay or set apart for payment any dividend or
other distribution in respect of any shares of Junior Stock (other than
dividends payable in Junior Stock), or call for redemption, redeem,
purchase or otherwise acquire for consideration any shares of Junior
Stock (any such transaction being herein called a "Junior Payment")
unless (i) full cumulative dividends on all shares of $2,500
Convertible Preferred Stock for all quarterly dividend periods ending
on or prior to the date of such transaction have been paid, and (ii) if
any such Junior Payment is payable on Junior Securities after any date
on which the Company is required to redeem any Shares pursuant to
Section 5(b) or 5 (d) , the Company shall have redeemed or repurchased
the full number of shares of $2,500 Convertible Preferred Stock
required to be redeemed by section 5(b) or 5(d). In addition,
following the occurrence of a Share Acquisition, a Sale Closing or any
Extraordinary Dividend or Buyback, the Company shall not effect any
Junior Payment until the right of all holders of shares of $2,500
Convertible Preferred Stock to require the Company to repurchase such
shares in respect of such Share Acquisition, Sale Closing or
Extraordinary Dividend or Buyback has expired.
IN WITNESS WHEREOF, ConAgra, Inc., a Delaware corporation, caused this
Statement of Resolution to be signed by its Chairman of the Board and Chief
Executive Officer and its Secretary on this 13th day of August, 1990.
CONAGRA, INC.,
A Delaware Corporation
/s/ C. M. HARPER
By:________________________
(Corporate Seal) C. M. Harper
Chairman of the Board and
Attest: Chief Executive Officer
/s/ L. B. THOMAS
________________________________
L. B. Thomas, Secretary
CERTIFICATE OF CHANGE OF LOCATION OF REGISTERED OFFICE
AND OF REGISTERED AGENT
It is hereby certified that:
1. The name of the corporation (hereinafter called the
"corporation") is: CONAGRA, INC.
2. The registered office of the corporation within the State
of Delaware is hereby changed to 32 Loockerman Square,
Suite L-100, Dover, Delaware 19901, County of Kent.
3. The registered agent of the corporation within the State of
Delaware is hereby changed to The Prentice-Hall Corporation
System, Inc., the business office of which is identical
with the registered office of the corporation as hereby
changed.
4. The corporation has authorized the changes hereinbefore set
forth by resolution of its Board of Directors.
Signed on August 1, 1991.
/s/ JOHN J. DILL
__________________________________
John J. Dill - Vice
President
Attest:
/s/ SUE E. BADBERG
___________________________________
Sue Badberg - Assistant Secretary
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
CONAGRA, INC.
CONAGRA, INC., a corporation organized and existing under and by virtue
of the General Corporation Law of the State of Delaware, does hereby certify:
FIRST: That at a meeting of the Board of Directors of CONAGRA,
INC., resolutions were duly adopted setting forth proposed
amendments to the Certificate of Incorporation of said
corporation declaring said amendments to be advisable and
calling a meeting of the stockholders of said corporation
for consideration thereof. The resolutions setting forth
the proposed amendments are as follows:
"RESOLVED, that the second sentence of ARTICLE VII,
Paragraph (a), of the Certificate of Incorporation of the
corporation be amended to read:
The number of directors of the corporation, not
less than nine (9) nor more than sixteen (16),
shall be fixed from time to time by the By-
Laws.
"RESOLVED, that the first paragraph of ARTICLE IV of the
Certificate of Incorporation entitled "AUTHORIZED SHARES"
be amended in accordance with Exhibit "A" attached hereto
to reflect an increase in the total number of shares which
this corporation shall have authority to issue from
604,000,000 shares to 618,050,000 shares by increasing the
authorized Class E Preferred Stock without par value from
2,500,000 shares to 16,550,000 shares."
SECOND: That thereafter, pursuant to resolution of its Board of
Directors, an annual meeting of the shareholders of said
corporation was duly called and held, upon notice in
accordance with Section 222 of the General Corporation Law
of the State of Delaware on September 16, 1991 at which
meeting the necessary number of shares as required by
statute were voted in favor of the amendments.
THIRD: That said amendments were duly adopted in accordance with
the provisions of Section 242 of the General Corporation
Law of the State of Delaware.
IN WITNESS WHEREOF, said CONAGRA, INC., has caused this Certificate to
be signed by L. B. THOMAS, its Vice President, and attested to by SUE BADBERG,
its Assistant Secretary, this 26th day of September, 1991.
CONAGRA, INC.
/s/ L. B. THOMAS
By__________________________________
L. B. THOMAS
Vice President
Attest:
/s/ SUE E. BADBERG
________________________________
SUE BADBERG,
Assistant Secretary
Exhibit "A"
ARTICLE IV
AUTHORIZED SHARES
(FIRST PARAGRAPH)
The total number of shares which this corporation shall have authority
to issue is Six Hundred Eighteen Million Fifty Thousand (618,050,000) shares,
divided into Six Hundred Million (600,000,000) shares of Common Stock of a par
value of Five Dollars ($5.00) per share; One Hundred Fifty Thousand (150,000)
shares of Class B Preferred Stock of a par value of Fifty Dollars ($50.00) per
share; Two Hundred Fifty Thousand (250,000) shares of Class C Preferred Stock
of a par value of One Hundred Dollars ($100.00) per share; One Million One
Hundred Thousand (1,100,000) shares of Class D Preferred Stock without par
value; and Sixteen Million Five Hundred Fifty Thousand (16,550,000) shares of
Class E Preferred Stock, without par value.
The remainder of this Article shall remain unchanged in its
entirety.
CERTIFICATE OF DESIGNATION
STATEMENT OF RESOLUTIONS ESTABLISHING SERIES
OF CLASS E PREFERRED SHARES OF CONAGRA, INC.
Pursuant to Section 151(g) of the General Corporation Law of the State
of Delaware, ConAgra, Inc., a corporation organized and existing under the
laws of the State of Delaware, does hereby certify that the following
resolution providing for the issuance of 14,195,500.08 shares of $25.00
Cumulative Convertible Voting Preferred Stock, Series 1, was adopted by its
Board of Directors pursuant to authority expressly vested in it by the
provisions of the Certification of Incorporation of ConAgra, Inc., as amended.
RESOLVED, that the Board of Directors of ConAgra, Inc., a Delaware
corporation (herein the "Company"), hereby establishes a series of
14,195,500.08 shares of Class E Preferred Stock, without par value, of this
Company which shall constitute the entirety of this series, said shares to be
known as $25.00 Cumulative Convertible Voting Preferred Stock, Series 1, and
shall be subject to the following relative rights and preferences:
1. Designation of Series. The series shall be designated "$25.00
Cumulative Convertible Voting Preferred Stock, Series l" (hereinafter called
"$25.00 Convertible Preferred Stock"). The stated value of each share of
$25.00 Convertible Preferred Stock is $25.00.
2. Number of Shares. The number of shares of $25.00 Convertible
Preferred Stock initially is 14,195,500.08 which number the Board of Directors
may increase or decrease without a vote of stockholders, but not decrease
below the number of shares of the series then outstanding.
3. Dividends. The dividend rate for the $25.00 Convertible
Preferred Stock is $1.6875 per share per annum, payable quarterly, at the rate
of $.421875 per quarter, in cash. Dividends on the $25.00 Convertible
Preferred Stock shall be paid, or declared and a sum sufficient for payment
thereof Set Apart for Payment, before any dividend or distribution in cash or
other property (other than dividends payable in stock ranking junior ("Junior
Stock") to the $25.00 Convertible Preferred Stock as to dividends and upon
liquidation, distribution, dissolution and winding-up) is declared, paid or
Set Apart for Payment on any class or series of Junior Stock. Dividends on
the $25.00 Convertible Preferred Stock shall accrue as if the shares had been
issued on, and shall be cumulative from and after, April 1, 1992. If shares
of these $25.00 Convertible Preferred Stock are exchanged for shares of $2,500
Cumulative Convertible Voting Preferred Stock, Series 1, then with respect to
the shares so exchanged, any dividends accrued, paid, or declared and a sum
sufficient for payment thereof Set Apart for Payment on the $2,500 Cumulative
Convertible Voting Preferred Stock, Series 1 shall be considered accrued, paid
and shall be credited to payment of dividends on the $25.00 Convertible
Preferred Stock. The amount of dividends so payable for any partial period
shall be determined on the basis of twelve 30-day months and a 360-day year.
Dividends paid on the shares of $25.00 Convertible Preferred Stock in an
amount less than the total amount of such dividends at the time accrued and
payable on such shares shall be allocated pro rata among all such shares then
outstanding. "Set Apart for Payment" shall mean the Company shall have
irrevocably deposited with a bank or trust company having capital and surplus
of at least $100,000,000, in trust for the exclusive benefit of the holders of
$25.00 Convertible Preferred, funds sufficient to satisfy the Company's
payment obligation.
4. Dividend Payment Dates; Record Dates. The dates on which
dividends on the $25.00 Convertible Preferred Stock shall be payable are
January 1, April 1, July 1 and October 1 of each year (or, if any of such days
is not a Business Day, the Business Day next preceding such day). The Board of
Directors may fix a record date for the determination of holders of shares of
$25.00 Convertible Preferred Stock entitled to receive payment of a dividend
declared thereon, which record date shall be no more than 60 days and no less
than 10 days prior to the payment date fixed therefor. For purposes hereof,
"Business Day" shall mean any day, other than a Saturday or Sunday, on which
commercial banks are not authorized or required to close in New York City.
5. Redemption.
(a) Optional Redemption. The $25.00 Convertible Preferred
Stock shall not be redeemable at the option of the Company prior to August 14,
1995 (the "Initial Redemption Date"). From and after August 14, 1995, subject
to the limitation set forth in Section 5(e) below, all or any part of the
$25.00 Convertible Preferred Stock shall be redeemable at the option of the
Company and the redemption prices per share shall be as follows plus an amount
equal to all accrued and unpaid dividends through and including the redemption
date (as defined below):
If Redemption Date Is During Redemption
12-Month Period Beginning On: Price
Initial Redemption Date in:
1995. . . . . . . . . . . . . . . . . . . . . $25.48225
The anniversary of the Initial Redemption
Date in each of the following years:
1996. . . . . . . . . . . . . . . . . . . . . $25.2410
1997 and thereafter . . . . . . . . . . . . . $25.00
In the case of the redemption of a part of the shares of $25.00
Convertible Preferred Stock, the shares to be so redeemed shall be selected
pro rata.
In order to facilitate the redemption of shares of $25.00 Convertible
Preferred Stock, the Board of Directors may fix a record date for the
determination of holders of shares of $25.00 Convertible Preferred Stock to be
redeemed not more than 90 days or less than 45 days prior to the redemption
date. Notice of any redemption pursuant to this Section 5 shall be sent, by
prepaid certified mail, at least 45, but not more than 90, days in advance of
the date designated for such redemption (herein called the "redemption date")
to the holders of record of shares of $25.00 Convertible Preferred Stock to be
redeemed at their respective addresses as the same shall appear on the books
of the Company. Each such notice shall state: (1) the redemption date; (2)
the number of shares to be redeemed and, if less than all the shares held by
such holder are to be redeemed, the number of such shares to be redeemed from
such holder; (3) the redemption price; (4) the place or places where
certificates for such shares are to be surrendered for payment of the
redemption price; and (5) that dividends on the shares to be redeemed will
cease to accrue after such redemption date. If less than all the shares
represented by any such surrendered certificate are redeemed, a new
certificate shall be issued representing the unredeemed shares.
(b) Mandatory Redemption. On August 14, 2002, subject to the
provisions of Section 5(e) hereof, the Company shall call for redemption all
shares of $25.00 Convertible Preferred Stock, by paying therefor in cash
$25.00 per share plus all accrued and unpaid dividends thereon through the
date of payment, such sum being the redemption price. Notice of such
redemption shall be given to the holders of record of $25.00 Convertible
Preferred Stock as provided in the immediately preceding paragraph. On the
date fixed for redemption, and stated in such notice, each holder of $25.00
Convertible Preferred Stock shall surrender such holder's certificate or
certificates at the place designated in such notice and thereupon be entitled
to receive payment of the redemption price.
(c) Payment. The Company shall, on or prior to the date fixed
for redemption of any shares pursuant to Section 5(a) or 5(b), but not earlier
than 45 days prior to the date fixed for redemption, Set Aside for Payment a
sum sufficient to redeem the shares called for redemption, with irrevocable
instructions and authority to the redemption agent to complete the redemption
thereof and to pay such funds to the respective holders of such shares, as
evidenced by a list of such holders certified by an officer of the Company,
upon surrender of their respective share certificates. From and after the
date of such deposit, the shares represented thereby shall no longer be deemed
outstanding, and all rights of the holders of the shares of $25.00 Convertible
Preferred Stock called for redemption, as stockholders of the Company with
respect to such shares, shall cease and terminate, except that their right to
receive the redemption price, without interest, upon the surrender of their
respective certificates shall never cease, their right to convert their shares
into Common Stock as provided herein shall not cease until the close of
business on the day prior to the redemption date and their right to receive
dividends and distributions shall not cease until the close of business on the
redemption date. In case the holders of any shares shall not, within one year
after such deposit, claim the amount deposited for redemption thereof, the
redemption agent shall, upon demand, pay over to the Company the balance of
such amount so deposited. Thereupon, such redemption agent shall be relieved
of all responsibility to the holders thereof and the sole right of such
holders shall be as general creditors of the Company. To the extent that
shares of $25.00 Convertible Preferred Stock called for redemption are
converted into Common Stock prior to the date fixed for redemption, the amount
deposited by the Company to redeem such shares shall immediately be returned
to the Company. Any interest accrued on any funds so deposited shall belong
to the Company, and shall be paid to it from time to time on demand.
(d) Redemption at Option of Holders. In the event that (i) (a)
any person (with the defined meaning as used in Section 13(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act")) becomes the
beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of more
than 50% of the Common Stock of the Company outstanding after giving effect to
such acquisition, or securities constituting more than 50% of the total voting
power of the Company after giving effect to such acquisition (a "Share
Acquisition"), or (ii) the Company sells or otherwise disposes of all or
substantially all of its assets ("Extraordinary Asset Sale"), or (iii) an
"Extraordinary Dividend or Buyback" (as hereinafter defined) occurs, each
holder of $25.00 Convertible Preferred Stock, subject to the conditions of
this Section 5(d) and Section 5(e) below, shall have the option to require the
Company to redeem all, but not less than all, of the $25.00 Convertible
Preferred Stock owned by such holder at $25.00 per share plus accrued and
unpaid dividends thereon, whether or not declared, through the redemption
date.
The Company shall not cause an Extraordinary Dividend or Buyback to
occur, or permit an Extraordinary Asset Sale, unless, prior to the occurrence
of any thereof, the Company takes all such actions, if any, required by its
Certificate of Incorporation, including Article XVIII thereof, if applicable,
to permit the Company to redeem the $25.00 Convertible Preferred Stock in
accordance with the applicable provisions of this Section 5.
For purposes of this Section 5(d), and "Extraordinary Dividend or
Buyback" shall occur if the Company shall, in one transaction or a series of
related transactions following August 14, 1990, pay or effect a dividend or
distribution in respect of its Common Stock (other than a dividend payable
solely in Common Stock or rights to acquire Common Stock of the Company or a
regular quarterly cash dividend on the Common Stock), or shall repurchase,
redeem, retire, exchange or otherwise acquire for value any of its Common
Stock (other than solely from any wholly-owned subsidiary and other than
solely for Common Stock or rights to acquire Common Stock of the Company) if
the sum of the cash and the "Fair Market Value" (as hereinafter defined) of
the securities and assets paid or distributed in connection therewith
(determined on the record date for each such dividend or distribution or the
effective date for each such purchase, redemption, retirement, exchange or
other acquisition) exceeds 30% of the aggregate Fair Market Value of all
Common Stock of the Company outstanding on the record date for the latest such
dividend or distribution or the effective date for the latest such purchase,
redemption, retirement, exchange or other acquisition (determined on such
record or effective dates).
"Fair Market Value" shall mean (i) as to securities which are publicly
traded, the average of the daily closing prices (based on the 4:30 p.m., New
York time, NYSE Composite Transactions closing price on the applicable date)
of such securities for the fifteen consecutive trading days immediately
preceding the date of determination and (ii) as to securities which are not
publicly traded or any other property, the fair value thereof as determined in
good faith by the Board of Directors of the Company or a duly authorized
committee thereof, which determination shall be conclusive.
In the event of any Share Acquisition or Extraordinary Dividend or
Buyback, the Company shall, at the close of business on the redemption date
after the Share Acquisition or Extraordinary Dividend or Buyback, upon the
written demand of any record holder of $25.00 Convertible Preferred Stock who
so requests, redeem all of the $25.00 Convertible Preferred Stock owned by
such holder at $25.00 per share plus accrued and unpaid dividends through such
redemption date. Within five business days following any Extraordinary
Dividend or Buyback and within five business days after the Company has
knowledge that any such Share Acquisition has occurred, it shall mail to each
record holder of $25.00 Convertible Preferred Stock a form of written demand
to be used by such holder to exercise his right of redemption (a "Demand
Form") and a notice which shall disclose the occurrence of the Share
Acquisition or Extraordinary Dividend or Buyback, as the case may be, a
description in reasonable detail of the terms of such Share Acquisition or
Extraordinary Dividend or Buyback, and the right of such holder to require the
Company to redeem such $25.00 Convertible Preferred Stock pursuant to this
Section 5(d) and shall state the redemption date, the redemption price, the
place or places of payment, that payment will be made upon presentation and
surrender of the shares of $25.00 Convertible Preferred Stock and the date
(which must be at least 30 days after the notice is mailed to the
stockholders) by which such holder must notify the Company if it elects to
require the Company to make such redemption. Each record holder of $25.00
Convertible Preferred Stock which elects to require the Company to redeem on
the redemption date all of the $25.00 Convertible Preferred Stock which such
holder owns shall deliver to the Company not later than the redemption date a
completed Demand Form relating to the $25.00 Convertible Preferred Stock to be
redeemed. The term "redemption date", as used in connection with a redemption
resulting from a Share Acquisition or an Extraordinary Dividend or Buyback,
shall mean the close of business of the 45th day after the date of the
Extraordinary Dividend or Buyback or the date the Company has knowledge that
Share Acquisition has occurred, or, if such date is not a Business Day, the
next Business Day after such 45th day.
In the event of any sale of assets described in the first paragraph of
this Section 5(d), the Company shall, immediately prior to the effectiveness
of such sale ("Sale Closing"), upon the demand of any record holder of $25.00
Convertible Preferred Stock which so requests, redeem all of the $25.00
Convertible Preferred Stock owned by each such holder at $25.00 per share plus
accrued and unpaid dividends through the date on which such Sale Closing
occurs. Not later than 35 days prior to the effectiveness of any such Sale
Closing, the Company shall mail by certified or registered mail to each record
holder of $25.00 Convertible Preferred Stock a Demand Form and a notice which
shall disclose such Sale Closing, describe in reasonable detail the terms of
the related asset sale, and the right of such holder of $25.00 Convertible
Preferred Stock to require the Company to redeem such $25.00 Convertible
Preferred Stock pursuant to this Section 5(d), and shall state the anticipated
redemption date, the redemption price, the place or places that payment will
be made upon presentation and surrender of shares of $25.00 Convertible
Preferred Stock and the date (which must be at least 30 days after the notice
is mailed to the stockholders) by which such holder must notify the Company if
it elects to require the Company to make such redemption. Each record holder
of $25.00 Convertible Preferred Stock which elects to require the Company to
redeem on the redemption date all of the $25.00 Preferred Stock which it owns
must submit to the Company not later than the close of business on the
redemption date a completed Demand Form relating to the $25.00 Convertible
Preferred Stock to be redeemed. The term "redemption date", as used in
connection with a redemption upon the occurrence of a Sale Closing shall mean
the day on which the Sale Closing occurs.
Any notice by the Company which is mailed as herein provided shall be
conclusively presumed to have been duly given, whether or not the holder of
$25.00 Convertible Preferred Stock receives such notice; and failure to give
such notice by mail, or any defect in such notice, to the holders of any
shares shall not affect the validity of the proceedings for the redemption of
any other shares of $25.00 Convertible Preferred Stock. An election by a
holder of $25.00 Convertible Preferred Stock to have the Company redeem such
stock pursuant to this Section 5(d) shall become irrevocable on the relevant
redemption date. On or after the date fixed for redemption as stated in any
notice delivered by the Company, each holder of the shares called for
redemption shall surrender the certificates evidencing such shares to the
Company at the place designated in such notice and shall thereupon be entitled
to receive payment of the relevant redemption price in accordance with the
terms of this Section 5(d). If any such certificates shall be so surrendered
in connection with a redemption required to be made as a result of any Sale
Closing and for whatever reason such Sale Closing will not become effective,
then the Company shall cause such certificates to be returned promptly to the
respective holders thereof by registered mail or other secure means.
If, on the date fixed for redemption under any provision of this Section
5(d), funds necessary for the redemption shall have been Set Aside for
Payment, then in the case of any shares of $25.00 Convertible Preferred Stock
to be redeemed as a result of an Extraordinary Dividend or Buyback, a Sale
Closing or a Share Acquisition, after the close of business on the redemption
date, notwithstanding that the certificates evidencing any shares which the
holders thereof had elected to have redeemed shall not have been surrendered,
dividends with respect to such shares shall cease to accrue, such shares shall
no longer be deemed outstanding, the holders thereof shall cease to be
stockholders, and all rights whatsoever with respect to such shares (except
the right of the holders to receive the relevant redemption price without
interest upon surrender of their certificates therefor) shall terminate.
Shares of $25.00 Convertible Preferred Stock redeemed by the Company shall be
restored to the status of authorized but unissued shares of Class E Preferred
Stock of the Company, pursuant to the General Corporation Law of the State of
Delaware without designation as to series, and may thereafter be reissued, but
not as shares of $25.00 Convertible Preferred Stock.
Any redemption payment required to be made pursuant to Section 5(b) or
5(d) shall be paid, or a sum sufficient for payment thereof Set Apart for
Payment, before any dividend or distribution in cash or other property (other
than dividends payable in Junior Stock) is declared, paid or Set Apart for
Payment on any class or series of Junior Stock.
(e) Prior Approvals. On or before the redemption date for any
redemption of the $25.00 Convertible Preferred Stock pursuant to the
provisions of this Section 5, the Company will take such actions, if any,
required to be taken by the Company by its Certificate of Incorporation,
including Article XVIII thereof, to permit the Company to redeem the $25.00
Convertible Preferred Stock in accordance with the applicable provisions of
this Section 5.
6. Liquidation Rights. Upon the liquidation, dissolution or winding
up of the affairs (a "Liquidation") of the Company, whether voluntary or
involuntary, the holders of shares of the $25.00 Convertible Preferred Stock
shall be entitled to receive $25.00 per share plus in each case an amount
equal to all accrued and unpaid dividends thereon (whether or not declared)
before any payment or distribution of the assets of the Company, or proceeds
thereof (whether capital or surplus), shall be made to or set apart for the
holders of Junior Stock. If, upon any Liquidation of the Company, the Assets
available for distribution to the holders of $25.00 Convertible Preferred
Stock and any other stock of the Company ranking on a parity with the $25.00
Convertible Preferred Stock upon Liquidation shall be insufficient to pay the
holders of all outstanding shares of $25.00 Convertible Preferred Stock and
all other such parity stock the full amounts (including all dividends accrued
and unpaid) to which they shall be entitled, then such assets or the proceeds
therefrom shall be distributed among such holders ratably in proportion to the
full amount to which they are otherwise entitled.
7. Conversion. The shares of $25.00 Convertible Preferred Stock
shall be convertible, at the option of the holders thereof, at any time at the
principal Company office located in Omaha, Nebraska, or at the offices of such
duly appointed transfer agents for the $25.00 Convertible Preferred Stock, if
any, as the Board of Directors of the Company may determine, into fully paid
and non-assessable shares (calculated to the nearest 1/10,000 of a share) of
Common Stock of the Company at the rate of 1.017728 shares of Common Stock for
each share of $25.00 Convertible Preferred Stock, provided, however, that in
case of the redemption of any shares of $25.00 Convertible Preferred Stock,
such right of conversion shall cease and terminate, as to the shares called
for redemption, at the close of business on the day prior to the date fixed
for redemption, unless default shall be made in the payment of the redemption
price. The rate at which shares of Common Stock shall be deliverable in
exchange for shares of $25.00 Convertible Preferred Stock upon conversion
thereof is hereinafter referred to as the "conversion rate." The conversion
rate shall be subject to adjustment from time to time in certain instances as
hereinafter provided, except that no adjustment shall be made unless by reason
of the happening of any one or more of the events hereinafter specified, the
conversion rate then in effect shall be changed by 1% or more, but any
adjustment of less than 1% that would otherwise be required then to be made
shall be carried forward and shall be made at the time of and together with
any subsequent adjustment which, together with adjustment or adjustments so
carried forward, amounts to 1% or more, provided that such adjustment shall be
made in all events (regardless of whether or not the amount thereof or the
cumulative amount thereof amounts to 1% or more) upon the happening of one or
more of the events specified in either paragraph (a) or paragraph (d) of this
Section 7. Each adjustment in the conversion rate shall be rounded to the
nearest four decimal places. Upon conversion the holder shall be entitled to
receive an amount in cash equal to all dividends accrued and unpaid on the
$25.00 Convertible Preferred Stock surrendered for conversion to the
conversion date.
Before any holder of $25.00 Convertible Preferred Stock shall be
entitled to convert the same into Common Stock, he shall surrender the
certificate or certificates for such $25.00 Convertible Preferred Stock at the
principal office of the Company in Omaha, Nebraska, or at the office of any
transfer agent appointed as aforesaid, which certificate or certificates, if
the Company shall so request, shall be duly endorsed to the Company or in
blank, and shall complete the form printed on such certificate or certificates
indicating his election to convert such shares or otherwise give written
notice to the Company that he elects so to convert said $25.00 Convertible
Preferred Stock, and shall state in writing therein the name or names in which
he wishes the certificate or certificates for Common Stock to be issued.
The Company will, as soon as practicable after such surrender of
certificates for $25.00 Convertible Preferred Stock accompanied by the written
notice and the statement above prescribed, issue and deliver at the principal
office of the Company in Omaha, Nebraska, or at the office of any transfer
agent appointed as aforesaid, to the person for whose account such $25.00
Convertible Preferred Stock was so surrendered, or to his nominee or nominees,
certificates for the number of full shares of Common Stock to which he shall
be entitled as aforesaid, together with a cash adjustment (based on the 4:30
p.m., New York time, NYSE Composite transactions closing price on the
conversion date) for any fraction of a share as hereinafter stated, if not
evenly convertible. Subject to the following provisions of this paragraph,
such conversion shall be deemed to have been made as of the date of such
surrender of the $25.00 Convertible Preferred Stock to be converted, and the
person or persons entitled to receive the Common Stock issuable upon
conversion of such $25.00 Convertible Preferred Stock shall be treated for all
purposes as the record holder or holders of such Common Stock on such date.
The Company shall not be required to convert, and no surrender of $25.00
Convertible Preferred Stock shall be effective for that purpose, while the
stock transfer books of the Company are closed for any purpose; but the
surrender of $25.00 Convertible Preferred Stock for conversion during any
period while such books are closed shall become effective for conversion
immediately upon the reopening of such books, as if the conversion had been
made on the date such $25.00 Convertible Preferred Stock was surrendered, and
at the conversion rate in effect at the date of such surrender. The
conversion rate for the $25.00 Convertible Preferred Stock shall be subject to
adjustment from time to time as follows:
(a) If the Company shall at any time or from time to time pay a
dividend or make a distribution on its Common Stock in Common Stock,
subdivide its outstanding shares of Common Stock into a larger number of
shares or combine its outstanding shares of Common Stock into a smaller
number of shares, the conversion rate in effect immediately prior
thereto shall be adjusted so that each share of $25.00 Convertible
Preferred Stock shall thereafter be convertible into the number of
shares of Common Stock which the holder of a share of $25.00 Convertible
Preferred Stock would have been entitled to receive after the happening
of any of the events described above had such share been converted
immediately prior to the happening of such event. An adjustment made
pursuant to this paragraph (a) shall become effective retroactively to
the record date in the case of a dividend and shall become effective on
the effective date in the case of a subdivision or combination.
(b) If an event occurs pursuant to which Rights ("Rights"),
issued pursuant to the Rights Agreement dated July 10, 1986, between the
Company and Manufacturers Hanover Trust Company, as Rights agent, or any
amendment, supplement or substitution thereof (the "Rights Plan") detach
and become separable from the Common Stock, and following such event any
holder of the Rights surrenders the Rights Certificate (as defined in
the Rights Plan) and purchases shares of Common Stock in accordance with
such Rights Plan at a price per share less than the average market price
per share (determined as provided below) of the Common Stock on the date
such Right is surrendered and such shares purchased ("Exercise Date"),
then in each such case, except in the case of a holder who is an
Acquiring Person (as defined in the Rights Plan), the conversion rate
shall be adjusted so that the same shall equal the rate determined by
multiplying the conversion rate in effect immediately prior to the
Exercise Date by a fraction the numerator of which shall be the sum of
the number of shares of Common Stock outstanding immediately prior to
such Exercise Date plus the number of additional shares of Common Stock
so issued pursuant to such Rights Plan, and the denominator of which
shall be the sum of the number of shares of Common Stock outstanding
immediately prior to such Exercise Date plus the number of shares of
Common Stock which the aggregate price of the total number of shares so
issued pursuant to such Rights Plan would purchase at such average
market price. For the purposes of this paragraph (b), the number of
shares of Common Stock at any time outstanding shall not include shares
held in the treasury of the Company.
For the purpose of any computation under this Section 7, the
average market price per share of Common Stock on any date shall be the
average of the daily closing prices (based on the 4:30 p.m., New York
time, NYSE Composite transactions closing price on the applicable date,
or the closing price on such other exchange as may constitute the
principal trading market for the Common Stock, or the last quoted bid
price in the over-the-counter market if the Common Stock is not listed
on an exchange and is so traded) for the fifteen (15) consecutive
trading days commencing twenty (20) trading days before the earlier of
the date in question and the trading day before the "ex date", if any,
with respect to the issuance or distribution requiring such computation;
provided that if the Common Stock is not listed on an exchange or traded
in the over-the-counter market, the average market price shall be the
fair market value as determined in good faith by the Board of Directors
or any duly authorized committee. The term "ex date", when used with
respect to any issuance or distribution, means the first trading day on
which the Common Stock trades in the market from which the closing price
is then to be determined.
(c) If the Company shall distribute to all holders or Common
Stock (i) any rights or warrants to subscribe for or purchase any
security of the Company (other than those referred to in paragraph (b)
above) or any evidence of indebtedness or other securities of the
Company (other than Common Stock), or (ii) cash or other assets (other
than regular quarterly dividends payable solely in cash that may from
time to time be fixed by the Board of Directors of the Company), then in
each such case the conversion rate shall be adjusted so that the same
shall equal the rate determined by multiplying the conversion rate in
effect on the day immediately preceding the record date for the
determination of the stockholders entitled to receive such distribution
by a fraction the numerator of which shall be the average market price
per share (determined as provided in paragraph (b) above) of the Common
Stock on such record date and the denominator of which shall be such
average market price per share less the then fair market value (as
determined in good faith by the Board of Directors of the Company or a
duly authorized committee thereof, which determination shall be
conclusive) of the portion of the cash or other assets, rights,
warrants, evidences of indebtedness or other securities so distributed
applicable to one (1) share of Common Stock. Such adjustment shall
become effective retroactively immediately after the record date.
(d) In case of any capital reorganization or any
reclassification of the capital stock of the Company or in case of the
consolidation or merger of the Company with or into any other person
(other than a merger which does not result in any reclassification,
conversion, exchange or cancellation of outstanding shares of Common
Stock) or in case of any sale or conveyance of all or substantially all
of the assets of the Company, the person formed by such consolidation or
resulting from such capital reorganization, reclassification or merger
or which acquires such assets, as the case may be, shall make provision
in the articles or certificate of incorporation of such person such that
each share of $25.00 Convertible Preferred Stock shall thereafter be
convertible, subject to further adjustment as provided in subparagraph
(e) below, into the kind and amount of shares of stock, other
securities, cash and other property receivable upon such capital
reorganization, reclassification of capital stock, consolidation,
merger, sale or conveyance, as the case may be, by a holder of the
number of shares of Common Stock into which such share of $25.00
Convertible Preferred Stock was convertible immediately prior to such
capital reorganization, reclassification of capital stock,
consolidation, merger, sale or conveyance.
(e) In the event that at any time, as a result of any
adjustment made pursuant to subparagraphs (a) to (d) above, the holder
of any $25.00 Convertible Preferred Stock thereafter surrendered for
conversion shall become entitled to receive any securities of the
Company or any other person other than shares of Common Stock, the
number and type of such other securities so receivable upon conversion
of any share of $25.00 Convertible Preferred Stock shall be subject to
adjustment from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions contained in subparagraphs
(a) to (d) above, with respect to the Common Stock.
(f) Whenever the conversion rate is adjusted as provided in
this Section 7, the Company shall forthwith file with any transfer agent
for the $25.00 Convertible Preferred Stock appointed as aforesaid a
certificate signed by the President or one of the Vice Presidents of the
Company and by its Treasurer or an Assistant Treasurer, stating the
adjusted conversion rate determined as provided in this Section 7. Such
certificate shall show in detail the facts requiring such adjustment.
Whenever the conversion rate is adjusted, the Company will forthwith
cause a notice stating the adjustment and the adjusted conversion rate
to be mailed to the respective holders of record of $25.00 Convertible
Preferred Stock. Such transfer agent shall be under no duty to make any
inquiry or investigation as to the statements contained in any such
certificate or as to the manner in which any computation was made, but
may accept such certificate as conclusive evidence of the statements
therein contained, and each transfer agent shall be fully protected by
the Company with respect to any and all acts done or action taken or
suffered by it in reliance thereon. No transfer agent in its capacity
as transfer agent shall be deemed to have any knowledge with respect to
any change of capital structure of the Company unless and until it
receives a notice thereof pursuant to the provisions of this paragraph
(f) and in default of any such notice each transfer agent may
conclusively assume that there has been no such change.
The Company shall at all times reserve and keep available, out of
its authorized and unissued Common Stock, solely for the purpose of
effecting the conversion of the $25.00 Convertible Preferred Stock, such
number of shares as shall from time to time be sufficient to effect the
conversion of all shares of $25.00 Convertible Preferred Stock from time
to time outstanding. The Company shall from time to time, in accordance
with the laws of Delaware, increase the authorized amount of its Common
Stock if at any time the number of shares of Common Stock remaining
unissued shall not be sufficient to permit the conversion of all the
then outstanding $25.00 Convertible Preferred Stock.
No fractions of shares of Common Stock are to be issued upon
conversion, but in lieu thereof the Company will pay therefor in cash
based on the closing price (determined as provided in the last sentence
of paragraph (b) above) of the Common Stock on the business day next
preceding the day of conversion. If more than one certificate
representing $25.00 Convertible Preferred Stock shall be surrendered for
conversion at one time by the same holder, the number of full shares
issuable upon conversion thereof shall be computed on the basis of the
aggregate number of shares of $25.00 Convertible Preferred Stock so
surrendered.
The Company will pay any and all issue and other taxes (other
than taxes based on income) that may be payable in respect of any issue
or delivery of shares of Common Stock on conversion of $25.00
Convertible Preferred Stock pursuant hereto. The Company shall not,
however, be required to pay any tax which may be payable in respect of
any transfer involved in the issue and delivery of Common Stock in a
name other than that in which the $25.00 Convertible Preferred Stock so
converted was registered, and no such issue or delivery shall be made
unless and until the person requesting such issue has paid to the
Company the amount of any such tax, or has established, to the
satisfaction of the Company, that such tax has been paid.
8. Effects of Conversion on Capital and Surplus. Upon conversion of
$25.00 Convertible Preferred Stock, the capital attributable to the Common
Stock issued upon such conversion shall be the aggregate par value thereof,
and the stated capital and capital surplus (capital in excess of par or stated
value) of the Company shall, to the extent permitted by law, be
correspondingly increased or reduced to reflect the difference between the
stated value of the $25.00 Convertible Preferred Stock so converted and the
par value of the Common Stock issued upon conversion. Any shares of $25.00
Convertible Preferred Stock redeemed, purchased or otherwise reacquired, or
surrendered for conversion shall be cancelled and restored to the status of
authorized but unissued shares of Class E Preferred Stock, but shall not
thereafter be issued as shares of $25.00 Convertible Preferred Stock.
9. Voting Rights. Holders of the $25.00 Convertible Preferred Stock
shall have the following voting rights in addition to any voting rights
provided by law or in the Company's Certificate of Incorporation (as it may be
amended from time to time):
(a) At any annual or special meeting of stockholders at which
holders of Common Stock of the Company are entitled to vote or pursuant
to any written consent of stockholders, each holder of shares of $25.00
Convertible Preferred Stock shall be entitled to cast .17 votes per
share, voting as a single class with the Common Stock. The same record
date shall be used for all classes of stock entitled to vote at any such
meeting or pursuant to any such consent.
(b) Whenever (i) dividends on the $25.00 Convertible Preferred
Stock shall be in arrears in an amount equal to at least six quarterly
dividends (whether or not consecutive), thereafter and until all such
dividends shall have been paid in full or declared and Set Apart for
Payment or (ii) the Company shall have not redeemed shares of $25.00
Convertible Preferred Stock on the date such redemption is required
pursuant to Sections 5(b) or 5(d) hereof, thereafter and until such
redemption shall have been performed or all funds necessary therefore
Set Apart for Payment, the holders of the $25.00 Convertible Preferred
Stock, voting separately as a class, will be entitled to vote for and
elect two directors in addition to then existing board members. Such
right of the holders of $25.00 Convertible Preferred Stock to vote for
the election of such two directors may be exercised at any annual
meeting or at any special meeting called for such purpose as hereinafter
provided or at any adjournment thereof, or by written consent, until all
dividends (or other amounts payable) in default on such outstanding
shares of $25.00 Convertible Preferred Stock shall have been paid in
full (or such dividends or other amounts payable shall have been
declared and funds sufficient therefor Set Apart for Payment), at which
time the term of office of the two directors so elected shall terminate
automatically (subject to revesting in the event of each and every
subsequent default of the character specified in the preceding
sentence). So long as such right to vote continues, the Secretary of
the Company may call, and upon the written request of the holders of
record of 10% of the outstanding shares of $25.00 Convertible Preferred
Stock addressed to him at the principal office of the Company shall
call, a special meeting of the holders of such shares for the sole
purpose of the election of such two directors, as provided herein. Such
meeting shall be held not less than 45 nor more then 90 days after the
accrual of such right, at the place and upon the notice provided by law
and in the By-Laws of the Company for the holding of the meetings of
stockholders. No such special meeting or adjournment thereof shall be
held on a date less than 30 days before an annual meeting of
stockholders or any special meeting in lieu thereof, provided that at
such annual meeting appropriate provisions are made to allow the holders
of the $25.00 Convertible Preferred Stock to exercise such right at such
meeting. If at any such annual or special meeting or, any adjournment
thereof, the holders of a majority of the then outstanding shares of
$25.00 Convertible Preferred Stock entitled to vote in such election
shall be present or represented by proxy, or if the holders of a
majority of the outstanding shares of $25.00 Convertible Preferred Stock
shall have acted by written consent in lieu of a meeting, then the
authorized number of directors of the Company shall be increased by two,
and the holders of $25.00 Convertible Preferred Stock shall be entitled
to elect such two additional directors. The absence of a quorum of the
holders of any other class or series of capital stock of the Company at
any such annual or special meeting shall not affect the exercise by the
holders of the $25.00 Convertible Preferred Stock of such voting rights.
Directors so elected shall serve until the next annual meeting or until
their successors shall be elected, unless the term of office of the
persons so elected as directors shall have terminated by virtue of the
circumstances set forth in the second sentence of this Section 9(b). If
any vacancy occurs among the directors so elected by the holders of
$25.00 Convertible Preferred Stock as a class, the remaining director
who shall have been so elected may appoint a successor to hold office
for the unexpired term of the director whose place shall be vacant, and
such successor shall be deemed to have been elected by the holders of
$25.00 Convertible Preferred Stock. If both directors so elected by the
holders of $25.00 Convertible Preferred Stock shall cease to serve as
directors before their terms shall expire, the holders of $25.00
Convertible Preferred Stock then outstanding and entitled to vote for
such directors may, at a special meeting of such holders called as
provided above, or by written consent as hereinabove provided, elect
successors to hold office for the unexpired terms of the directors whose
places shall be vacant. After the holders of $25.00 Convertible
Preferred Stock shall have exercised their right to elect directors
pursuant to the terms of this Section 9(b), the authorized number of
directors shall not be increased, regardless of the terms of any Junior
Stock, except by a class vote of the holders of $25.00 Convertible
Preferred Stock as provided above. The rights of holders of $25.00
Convertible Preferred Stock to elect directors pursuant to the terms of
this Section 9(b) shall not be adversely affected by the voting or other
rights applicable to any other security of the Company.
(c) So long as any shares of $25.00 Convertible Preferred Stock
shall be outstanding and unless the vote or consent of the holders of a
greater number of shares shall then be required by law, the prior vote
or consent of the holders of at least 66 2/3% of the shares of $25.00
Convertible Preferred Stock at the time outstanding, voting as a single
class, given in person or by proxy, either in writing or by a vote at a
meeting called for the purpose, shall be necessary for (i) authorizing,
effecting or validating the amendment, alteration or repeal of any of
the provisions of this resolution or the Certificate of Incorporation of
the Company in any way so as to affect adversely the powers, preferences
or rights of $25.00 Convertible Preferred Stock or (ii) issuing any
shares of $25.00 Convertible Preferred Stock except in exchange for the
$2,500 Preferred Stock outstanding on the date hereof.
10. No Purchase, Retirement or Sinking Fund. The shares of $25.00
Convertible Preferred Stock shall not be subject to the operation of any
purchase, retirement or sinking fund.
11. Priority. The Common Stock of the Company, now or hereafter
issued, shall rank junior to the $25.00 Convertible Preferred Stock as to
payment of dividends and as to distributions of assets upon liquidation,
dissolution or winding up of the Company, whether voluntary or involuntary.
The $25.00 Convertible Preferred Stock shall rank on a parity as to the
payment of dividends and distributions of assets upon liquidation, dissolution
or winding-up of the Company, whether voluntary or involuntary, with all
classes and series of Preferred Stock of the Company issued and outstanding on
the date of issuance of the $25.00 Convertible Preferred Stock or subsequently
issued, except if subsequently issued stock is stated to be junior by its
terms.
12. Restriction on Junior Payments. For as long as any shares of
$25.00 Convertible Preferred Stock are outstanding, the Company shall not
declare, pay or set apart for payment any dividend or other distribution in
respect of any shares of Junior Stock (other than dividends payable in Junior
Stock, or call for redemption, redeem, purchase or otherwise acquire for
consideration any shares of Junior Stock (any such transaction being herein
called a "Junior Payment") unless (i) full cumulative dividends on all shares
of $25.00 Convertible Preferred Stock for all quarterly dividend periods
ending on or prior to the date of such transaction have been paid, and (ii) if
any such Junior Payment is payable on Junior Securities after any date on
which the Company is required to redeem any Shares pursuant to Section 5(b) or
5 (d), the Company shall have redeemed or repurchased the full number of
shares of $25.00 Convertible Preferred Stock required to be redeemed by
Section 5(b) or 5(d). In addition, following the occurrence of a Share
Acquisition, a Sale Closing or any Extraordinary Dividend or Buyback, the
Company shall not effect any Junior Payment until the right of all holders of
shares of $25.00 Convertible Preferred Stock to require the Company to
repurchase such shares in respect of such Share Acquisition, Sale Closing or
Extraordinary Dividend or Buyback has expired.
IN WITNESS WHEREOF, ConAgra, Inc., a Delaware corporation, caused this
Statement of Resolution to be signed by its Chairman of the Board and Chief
Executive Officer and its Secretary on this 6th day of May, 1992.
CONAGRA, INC.
A Delaware Corporation
/s/ C. M. HARPER
By:____________________________
(Corporate Seal) C. M. Harper
Chairman of the Board and
Chief Executive Officer
Attest:
/s/ L. B. THOMAS
__________________________________
L. B. Thomas, Secretary
CERTIFICATE OF ELIMINATION
OF STATEMENT OF RESOLUTIONS
OF CONAGRA, INC.
ConAgra, Inc., a corporation organized and existing under and by virtue
of the General Corporation Law of the State of Delaware, does hereby certify:
FIRST: On August 14, 1990, a Statement of Resolutions Establishing
Series of Class E Preferred Shares of ConAgra, Inc.
("Statement of Resolutions") was filed in the office of the
Delaware Secretary of State providing for the establishment
of a series of 141,955.0008 shares of Class E Preferred
Stock known as the $2,500 Cumulative Convertible Voting
Preferred Stock, Series 1 (hereinafter sometimes the
"$2,500 Preferred Stock").
SECOND: At a meeting of the Board of Directors of ConAgra, Inc.
held on July 9, 1992, the following resolutions were duly
adopted:
RESOLVED, that no shares of $2,500 Cumulative Convertible
Voting Preferred Stock, Series 1 (hereinafter the "$2,500
Preferred Stock") are outstanding, and none will be issued
subject to the Statement of Resolutions previously filed
with respect to such $2,500 Preferred Stock. Such
Statement of Resolutions Establishing the $2,500 Preferred
Stock of ConAgra, Inc. shall, therefore, be eliminated from
the Certificate of Incorporation in accordance with Section
151(g) of the Delaware General Corporation Law and the
$2,500 Preferred Stock shall resume the status of
authorized but unissued Class E Preferred Stock.
THIRD: Pursuant to Section 151(g) of the Delaware General
Corporation Law, the Statement of Resolutions establishing
the $2,500 Cumulative Convertible Voting Preferred Stock,
Series 1, is hereby eliminated and the shares authorized
thereby shall resume the status of authorized but unissued
Class E Preferred Stock.
FOURTH: The resolutions and amendments hereby were duly adopted in
accordance with the provisions of Section 151(g) of the
Delaware General Corporation Law.
IN WITNESS WHEREOF, ConAgra, Inc. has caused this certificate to be
signed by L. B. Thomas, its Senior Vice President Finance, and attested to by
Sue E. Badberg, its Assistant Secretary, this 9th day of July, 1992.
CONAGRA, INC.
/s/ L. B. THOMAS
By:________________________
L. B. Thomas, Senior Vice
President Finance
ATTEST:
/s/ SUE E. BADBERG
______________________________
SUE E. BADBERG, Assistant
Secretary
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
CONAGRA, INC.
CONAGRA, INC., a corporation organized and existing under and by virtue
of the General Corporation Law of the State of Delaware, does hereby certify:
FIRST: That at a meeting of the Board of Directors of CONAGRA,
INC., a resolution was duly adopted setting forth a
proposed amendment to the Certificate of Incorporation of
said corporation declaring said amendment to be advisable
and calling a meeting of the stockholders of said
corporation for consideration thereof. The resolution
setting forth the proposed amendment is as follows:
"RESOLVED, that the first paragraph of ARTICLE IV of the
Certificate of Incorporation entitled "AUTHORIZED SHARES"
be amended in accordance with Exhibit "A" attached hereto
to reflect an increase in the total number of shares which
this corporation shall have authority to issue from
618,050,000 shares to 1,218,050,000 shares by increasing
the authorized Common Stock of a par value of Five Dollars
($5.00) from 600,000,000 shares to 1,200,000,000."
SECOND: That thereafter, pursuant to resolution of its Board of
Directors, an annual meeting of the shareholders of said
corporation was duly called and held, upon notice in
accordance with Section 222 of the General Corporation Law
of the State of Delaware on September 22, 1992 at which
meeting the necessary number of shares as required by
statute were voted in favor of the amendment.
THIRD: That said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of
the State of Delaware.
IN WITNESS WHEREOF, said CONAGRA, INC., has caused this Certificate to
be signed by L. B. THOMAS, its Vice President, and attested to by SUE BADBERG,
its Assistant Secretary, this 16th day of September, 1992.
CONAGRA, INC.
/s/ L. B. THOMAS
By__________________________________
L. B. THOMAS
Vice President
Attest:
/s/ SUE BADBERG
________________________________
SUE BADBERG,
Assistant Secretary
Exhibit "A"
ARTICLE IV
AUTHORIZED SHARES
(FIRST PARAGRAPH)
The total number of shares which this corporation shall have authority
to issue is One Billion Two Hundred Eighteen Million Fifty Thousand
(1,218,050,000) shares, divided into One Billion Two Hundred Million
(1,200,000,000) shares of Common Stock of a par value of Five Dollars ($5.00)
per share; One Hundred Fifty Thousand (150,000) shares of Class B Preferred
Stock of a par value of Fifty Dollars ($50.00) per share; Two Hundred Fifty
Thousand (250,000) shares of Class C Preferred Stock of a par value of One
Hundred Dollars ($100.00) per share; One Million One Hundred Thousand
(1,100,000) shares of Class D Preferred Stock without par value; and Sixteen
Million Five Hundred Thousand (16,500,000) shares of Class E Preferred Stock,
without par value.
The remainder of this Article shall remain unchanged in its
entirety.
CERTIFICATE OF ELIMINATION
OF STATEMENTS OF RESOLUTIONS AND CERTIFICATES OF DESIGNATION
FOR CERTAIN SERIES OF CLASS B, CLASS C AND CLASS E PREFERRED STOCK
OF CONAGRA, INC.
UNDER SECTION 151(g) OF THE GENERAL CORPORATION LAW
OF THE STATE OF DELAWARE
ConAgra, Inc., a Delaware corporation (hereinafter referred to as the
"Corporation"), does hereby certify that the following resolutions were duly
adopted by the Corporation's Board of Directors:
"WHEREAS, by reason of conversion or redemption, no shares
of the Corporation's Series 1, 2, 3, 4, 5, 6 or 7 Class B
Preferred Stock (the "Prior Series Class B Preferred Stock"),
Series 1, 2 or 3 Class C Preferred Stock (the "Prior Series Class
C Preferred Stock") or the $2,500 Class E Cumulative Convertible
Voting Preferred Stock or $25 Class E Cumulative Convertible
Voting Preferred Stock (the "Prior Series Class E Preferred
Stock") remain outstanding, it is hereby:
"RESOLVED, that no additional shares of the Prior Series
Class B Preferred Stock, Prior Series Class C Preferred Stock or
Prior Series Class E Preferred Stock will be issued pursuant to
the terms of the Certificates of Designation or Statements of
Resolution of each such series of Preferred Stock;
"FURTHER RESOLVED, that the officers of the Corporation are
duly authorized to file a certificate with the Secretary of State
of Delaware eliminating from the Certificate of Incorporation all
matters set forth in each Certificate of Designation or Statement
of Resolution for the Prior Series Class B Preferred Stock, Prior
Series Class C Preferred Stock and Prior Series Class E Preferred
Stock in respect of each such series of such Preferred Stock."
Upon the effective date of the filing of this Certificate, there shall
be eliminated from the Certificate of Incorporation all matters set forth in
the Certificates of Designation or Statements of Resolution, with respect to
the Prior Series Class B Preferred Stock, Prior Series Class C Preferred Stock
and Prior Series Class E Preferred Stock, in respect of each such series of
such Preferred Stock.
IN WITNESS WHEREOF, ConAgra, Inc. has caused its corporate seal to be
hereunto affixed and this Certificate to be signed by J. P. O'Donnell, its
Senior Vice President and Chief Financial Officer, and attested by L. B.
Thomas, its Senior Vice President and Secretary, this 8th day of December,
1995.
ConAgra, Inc.
/s/ J. P. O'DONNELL
By:________________________________
Senior Vice President and
Chief Financial Officer
Attest:
/s/ L. B. Thomas
By:______________________________________
Senior Vice President and Secretary
CERTIFICATE OF ELIMINATION
OF STATEMENTS OF RESOLUTIONS
FOR $2.50 CLASS D CUMULATIVE CONVERTIBLE STOCK
OF CONAGRA, INC.
UNDER SECTION 151(g) OF THE GENERAL CORPORATION LAW
OF THE STATE OF DELAWARE
ConAgra, Inc., a Delaware corporation (hereinafter referred to as the
"Corporation"), does hereby certify that the following resolutions were duly
adopted by the Corporation's Board of Directors:
"WHEREAS, by reason of conversion or redemption, no shares
of the Corporation's $2.50 Class D Cumulative Convertible
Preferred Stock (the "Prior Series Class D Preferred Stock")
remain outstanding, it is hereby:
"RESOLVED, that no additional shares of the Prior Class D
Preferred Stock will be issued pursuant to the terms of the
Statement of Resolution of such series of Preferred Stock;
"FURTHER RESOLVED, that the officers of the Corporation are
duly authorized to file a certificate with the Secretary of State
of Delaware eliminating from the Certificate of Incorporation all
matters set forth in the Statement of Resolution for the Prior
Series Class D Preferred Stock in respect of such series of
Preferred Stock."
Upon the effective date of the filing of this Certificate, there shall
be eliminated from the Certificate of Incorporation all matters set forth in
the Statement of Resolution, with respect to the Prior Series Class D
Preferred Stock in respect of such series of such Preferred Stock.
IN WITNESS WHEREOF, ConAgra, Inc. has caused its corporate seal to be
hereunto affixed and this Certificate to be signed by J. P. O'Donnell, its
Senior Vice President and Chief Financial Officer, and attested by L. B.
Thomas, its Senior Vice President and Secretary, this 10th day of February,
1996.
ConAgra, Inc.
/s/ J. P. O'DONNELL
By:________________________________
Senior Vice President and
Chief Financial Officer
Attest:
/s/ L. B. Thomas
By:________________________________________
Senior Vice President and Secretary